The Third Department, affirming Supreme Court, in a full-fledged opinion by Justice Egan, determined the judge properly granted leave to serve a late answer raising the statute-of-limitations defense to the foreclosure action. The motion for leave to serve a late answer was made 10 months after the expiration of the time to serve an answer. The Third Department affirmed the dismissal of the complaint as time-barred.
… [D]efendant did not seek leave to serve a late answer until approximately 10 months after the expiration of his time to serve an answer, but there is no indication that the failure to serve an answer was willful. Defense counsel … attributed the delay to defendant’s unsuccessful pro se negotiations with plaintiff — of which little detail was given, but which plaintiff also notably failed to deny had occurred — after which defendant promptly sought legal assistance upon receiving plaintiff’s motion for a default judgment … . Plaintiff further offered no explanation as to how it would be prejudiced by allowing defendant to serve a late answer. * * *
As the first [foreclosure] action was dismissed for neglect to prosecute, neither CPLR 205 (a) nor CPLR 205-a afforded plaintiff a six-month grace period in which to commence this action following the termination of that action upon dismissal of plaintiff’s appeal from the 2016 order … Supreme Court … , as a result, properly dismissed this action as time-barred. Deutsche Bank Natl. Trust Co. v Deluca, 2024 NY Slip Op 01132, Third Dept 2-29-24
Practice Point: The criteria for allowing leave to serve a late answer is explained in some depth.
Practice Point: The unique criteria for dismissal of a foreclosure action as time-barred is explained in some depth.