Singh v. Pradhan

214 N.Y.S.3d 149

Mani SINGH, respondent,

v.Projwal PRADHAN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 1, 2024

July 3, 2024

Phillips & Associates, PLLC, New York, NY (Steven Fingerhut and Zachary Randall of counsel), for appellant.

Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Matthew J. Routh of counsel), for respondent.

HECTOR D. LASALLE, P.J., JOSEPH J. MALTESE, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered November 16, 2022. The order denied the defendant’s motion pursuant to CPLR 3012(d), 2004, and 2005 for leave to serve a late answer.

ORDERED that the order is affirmed, with costs.

In June 2022, the plaintiff commenced this action against the defendant to recover damages for defamation, libel, embezzlement, and theft of identity. In August 2022, the defendant moved pursuant to CPLR 3012(d), 2004, and 2005 for leave to serve a late answer. The Supreme Court denied the motion. The defendant appeals.

" ‘A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action"' (Ezra Huber & Assoc., P.C. v. Lopresti, 211 A.D.3d 689, 690, 180 N.Y.S.3d 216, quoting Bank of Am., N.A. v. Viener, 172 A.D.3d 795, 796, 100 N.Y.S.3d 298). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see HSBC Bank USA v. Pantel, 208 A.D.3d 643, 644, 173 N.Y.S.3d 608; Bank of Am., N.A. v. Viener, 172 A.D.3d at 796, 100 N.Y.S.3d 293). Here, the defendant’s misguided strategy did not constitute law office failure and was not a reasonable excuse (see Federal Natl. Mtge. Assn. v. Grossman, 205 A.D.3d 770, 772, 165 N.Y.S.3d 892). The defendant’s excuse that his counsel was overbooked with other, unrelated cases in other courts also did not constitute a reasonable excuse (see generally 47 Thames Realty, LLC v. Robinson, 61 A.D.3d 923, 878 N.Y.S.2d 752). Further, the defendant’s excuse that his counsel mistakenly thought opposing counsel would agree to an extension, without more, did not constitute a detailed and credible explanation for the delay (see Dawkins v. Isole, 206 A.D.3d 878, 879, 171 N.Y.S.3d 517; Juseinoski v. Board of Educ. of City of N.Y, 15 A.D.3d 353, 355, 790 N.Y.S.2d 162).

Since the defendant failed to provide a reasonable excuse for his delay in answering the complaint, it is not necessary to determine whether he demonstrated a potentially meritorious defense to the action (see Wells...