Cunxian Lin v 62-08 Realty LLC

2024 NY Slip Op 32984(U)

August 20, 2024

Supreme Court, Kings County

Docket Number: Index No. 516840/2023

Judge: Carolyn E. Wade

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: KINGS COUNTY CLERK 08/23/2024 12:46 PM INDEX NO. 516840/2023

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PRESENT: HON; CAROLYN E. WADE 

J.S.C 

--- .·· .. -----------. ----· -..-----. ______________ .: _______ x 

CUNXIAN LIN, 

Plaintiff, 

-against.;. 

62.:.08 REALTY LLC, 

Defendant. 

---- . ---------------- . ----. · .... ------ .--------------. ----~x 

AtIAS Part 84 oftheSupreme Court 

ofthe State of New York, held in and 

for the County of Kings, at the 

Courthouse thereof, 360 Adams 

Street, New York, New York on the 

20th of August 2024 

Index No,: 516840/2023 

Motion Date: July 17; 2024 

DECISION/ORJ)ER 

Motion Seq. Nos. 001 and 002 

Papers 

Numbered 

Notice of Motion.,Affidavit.,Affirrnatfon-Exhibits ..........•.. ; ...... ; .......•... EF 4-13 

Notice of Cross-Motion-Affidavit•:-Affirmation ........... , ........•.............. EF 15-17 

Reply Affidavit-A:ffirmation~Exhlbits .......•..................................... EF l 9'-22 

Upon the foregoing papers,after oral.argument, PlaintiffCunxianLin's ("Plaintiff') 

Motion fora Default Judgment, and defendant 62-08 Realty LLC's ("Defendant") Cross~Motiort 

to Dismiss, putsuantto CPLR § 3211(a)(l), or alternatively, compel the acceptance ofaJate answer 

is decided as follows: 

Plaintiff commenc.ed this breach of contact action by filing a Summons· and Verified 

Complaint and a Notice or Pendertcy on June :g, 2023. befenciant was served wfth 1:he pleadings, 

byway ofs~rvice,on the Sec:retaryofState ofNewYol'.k on June 20,2023 (NYSCEF Doc .. No. 3). 

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The time for the Defendant to respond to the Complaint expired on July 20, 2023. · Defendant 

neither timely interposed an answer nor move to extend its time to respond. 

· In compliance with. CPLR · § 3 2 l5(g); an additional mailing of the Summons and Verified 

Complaint was made on August 22, 2023 (NYSCEF Doc. No. 10). 

On August 22, 2023, the Plaintiff filed the instant motion for a default judgment. Per the 

Verified Complaint and an Affidavit sworn t:o by Plaintiff, Defendant approached the Plaintiff, in 

March 2014, and solicited him to purchase.a condominium unit from it. In detrimental 

reliance on Defendant's representations, Pl~ntiff agreed to purchase Unit: I 003 for the price of 

$530,000.00 and gave Defendant a $265,000.00 downpayment. Ir'.l exchange; Defendant agreed to 

sell and· convey the unit 1003 · to the Plaintiff for that price. However, Defendant subsequently 

represented to the Plaintiff that it could not sign a contract Of sale because itdid not have a condo 

offering plan yet; and induced the Plaintiff to accept a Promissory Note. On Match28,2014; 

Defendant signed a Promissory Note, promising to pay the-$265,000.00 back to the Plaintiff. 

However, despite Plaintiff's repeated demands, Defendant re:fused to start construction and convey 

the condominium unit to hirri. Defendant also refused to return the $265,000.00downpaymentto 

Plaintiff, which remains in its possess'ion. 

Defendant was served with Plaintiff's instant motion on August 22, 2023, but did not 

timely oppose it. Plaintiff's motiollwas admihistratively·adjournedfrom its original 

return date of September 12, 2023 to December 5,2023. Defendant did not oppose the. 

motion. On December 5, 2023, the Court administratively adjourned Plaintiffs motion to.January 

18, 2024; yet, the Defendant.still did not oppose it. On January 18, 2024, the Court 

administratively adjourned the motfon to April 2, 2024. Defendant finaily filed an Answer and a 

Notice of Cross.;;. Motion onMatch.26; 2.024. Defendant's late Answer was rejected.by Plaintiff 

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011 the same day. 

In its cross-motion,Defendant seek.site dismiss Plaintiffs Complaint, pursuantt° CPLR § 

3211 ( a)( 1 ), or alternatively, to compel the late acceptance of an answer pursuant to CPLR § 

3012[d]. Defendant submitted an Affirmati~n in Oppositionatid in Support of Cross-Motion, 

affinned by a Mr. Wolfe Landau ("Mr. L@dau"). Mr. Landau stated that he is-currently managing 

the Defendant, and admitte_d that the entity;$ address registered. with the Secretary -of State of New 

; 

Yotk is no longer current. Moreover, Defetjdatit argues that Plaintiffs default judgment motion 

should be denied on the following grounds: 1) Mr. Tu Kang Yang; who had signed the Promissory 

Note on-behalf cf Defendant in 2014, was n~ver a manager or had independent authority to do; 2) 

Plaintiff has not established that he-is in physical possession of the promissory note, 3) 

the promissory note is of questionable authenticity, and 4) that Plaintiffs Complaint shcmld he 

dismissed because the promissory note, by its owntetrns, is notripenedforreview, Alternatively, 

Defendant sought to vacate the default, pursuant to CPtR 317, on the grounds thatit was not 

personally serVed with the-pleadings, arid -alternatively, requested that Plaintiff be compelled to 

accept its late Answer. 

In reply; Plaintiff averred that he is in physical possession of the original Promissory Nate, 

and notes that Mr. Landau was not au_o\.Vller or member of the Def"endant .on or about April 25, 

2014- the date when Plaintiff remitted two c.ashier' s checks to Defendant. Mr; Tu Kartg Yang, 

who was DefendanC s manager at the time, acknowledged·receipt of the checks in writing, and 

signed the promissory note. Therefore, PlaintiffmaititainsthatMr. Landau lacks personal 

knowledge of the transactions in dispute. 

After a m~ticulous examination of the respecti y~ _ submissions, Plaintiffs instarit motion 

for a default judgment is granted; and I)efendant~s cross~1notion to dismiss/compel acceptance of 

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.a late answer is denied. 

A party seeking to vacate a default i17- appearing or answering and to serve a late answer 

must demonstrate a reasonable excuse for the default and a potentially meritorious defense fo the 

. . 

action (see CPLR 5015 [a] [1]; Heidari v Firs( Advance Funding Corp., 55 AD3d 669, 670 [2d Dept 

2008]; Levi v Levi, 46 AD3d519 [2d Dept 2007]; 599 Ralph Ave. Dev., LLC. v 799 Sterling Inc., 

34 AD3d 726 [2d Dept 2006]; New York & fresbyt Hosp. v Travelers Prop. Gas. Ins. Co., 27 

AD3d 708 [2dDept2006]). 

Moreover, the Appellate Division has held that tlie failure ofa corporate defendant to 

receive service ofprocess due to breach oftqe obligation to keep a current address on file with the 

Secretary of State (see, Business. Corporation Law § 3 06) does not· constitute a reasonable excuse 

(Lqwrence v. Esplanade Gardens; 213 AD2d 216.[PtDept 1995]; Cedeno v. Wimbledon Bldg; 

Co,p., 207 AD2d 297 [1st Dept 1994];Crespo v. A,D.A. Mgmt;, 292AD2d 5, 9'-10 [1st Dept 

2002]); Widgren v. 313 E. 9th Assoc., 295 AD2d 146 [2002]; Long ls; Indus. Group Two LLC 

v. Prime Communications Inc., l3 Misc3d 127[Al[AppTenn, Tenn, 9th & 10th Jud. Dists 2006]). 

Iri the instant case, Defendant proffered a.n affinnation from Mr. Landau~ who vaguely 

asserted that he is managing the entity. As for a reasonable ex:cuse for the default, Mr. Lat1dau 

states, "[w]hile I understand that the Defendant, 62-08 REALTY LLC is registered with.the. 

Secretary of State of New York with an address of 46'-lTSMART STREET, FLUSHING, NY, 

UNITED STATES, 11355, that is no longer:an address that should be associated with this entity" 

(~2; Landau AJ:f'). Tb.Us, Defendant admits that it did npt update the Secretary of State with its 

new address, despite the fact that Mt. Landau affirms thatthe membership of Defendant changed 

oyer the last year. In fact, Defendant does not contest that up to the date of Plaintiff's filing 

of his reply~ the entity did notu_pdate its address with the Secretary of State. No explanation is 

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provided for this oversight. Defendant also failed offer an explanation for not responding to both 

the Complaint and Plaintiff's instant motion from June 20, 2023 to March 26, 2024. 

This Court further finds that Defendant has not presented any viable meritorious defenses. 

Mr. ~andau's involvement with the Defendant is limited to the last year; thus, he lacks personal 

knowledge as to what transpired when the promissory note was signed, and the down payment was 

made by Plaintiff in 2014. Contrary to Defendant's contentions, Plaintiff has produced a copy of 

a fully executed Promissory Note, signed by the Defendant, and copies of official bank cashier's 

checks, wherein Defendant acknowledged receipt of the funds from the Plaintiff. Significantly, 

Defendant has held Plaintiff's $265,000 for about ten (10) years; yet, it has failed to start 

construction on the subject property. 

Accordingly, based upon the above, Plaintiff's Motion for a Default Judgment (motion seq. 

# 1) is granted. Plaintiff is awarded a judgment in the sum of $265,000.00 against the Defendant 

with interest from March 28, 2014, and costs. Defendant's Cross-Motion to dismiss/compel 

acceptance of a late answer (motion seq. #2) is denied in its entirety. 

This constitutes the Decision and Order of the Court. 

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· YN . WADE, J.S.C. 

•~~l!iffV,yn E. Wade 

Supreme Court Justice 

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