### 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 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/23/2024

1 of 5 

### 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 ofNew York, held in and for the 

### County of Kings, at the Courthouse thereof, 360 Adams Street, New York, New York on the 20th ofAugust 2024



### Index No,: 516840/2023
Motion Date: July 17; 2024 

### DECISION/ORJ)ER Motion Seq. Nos. 001 and 002



### Papers Numbered Notice ofMotion.,Affidavit.,Affirrnatfon-Exhibits ..........•.. ;......;.......•... EF 

### 4-13 Notice ofCross-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), oralternatively, compel the acceptance ofaJate answer is decided as follows: Plaintiff commenc.ed this breach 

### ofcontact action 

### by filinga 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).

__ ,,_.,,_,~..-••• ..•,.,~, .......m.,.,NY,O,.M,,, ••• •• .. ••••••• ..-• ••••• '""•••-••••• •• ,,,,, •••• '"'"'' ~'"'••••••• 

### [* 1]

### FILED: KINGS COUNTY CLERK 08/23/2024 12:46 PM INDEX NO. 516840/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/23/2024

2 of 5 The time for the Defendant to respondto 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 2l5(g); an additional mailing ofthe Summons and Verified Complaint was made on August 22, 2023 (NYSCEF Doc. No. 

### 10). On August 22, 2023, 

### the Plaintiff filed the 

### instantmotion

### for a defaultjudgment. Per 

### the 

## Verified Complaint and an Affidavit sworn t:o by 

## Plaintiff, Defendantapproached the Plaintiff, in March 2014, and solicited him to purchase.a condominium unit from it. 

### In detrimental reliance on Defendant's representations, Pl~ntiffagreed to purchase Unit: I 003 for the price of $530,000.00 and gave Defendanta $265,000.00 downpayment. Ir'.l exchange; Defendant agreed to sell and· convey the unit 1003 ·to the Plaintiff

### forthat price. However, Defendant subsequently represented to the Plaintiffthat it could not sign a contract Ofsale because itdid not have a condo offeringplan yet; and induced the Plaintiffto 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. Defendantalso refused to return the $265,000.00downpaymentto Plaintiff, which remains in its possess'ion. Defendantwas served with Plaintiff's instantmotion on August 22, 2023, but did not timely oppose it. Plaintiff's motiollwas admihistratively·adjournedfrom its original return date 

### ofSeptember 12, 2023 to December 5,2023. Defendant did not oppose the. motion. On December 

### 5, 2023, the Court administratively adjourned Plaintiffs motionto.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 2



### ---,
... ,.,_,, ....... ,...... . 

### [* 2]

### FILED: KINGS COUNTY CLERK 08/23/2024 12:46 PM INDEX NO. 516840/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/23/2024

3 of 5 011 

### 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 ofan answer pursuantto CPLR § 3012[d]. Defendant submitted an Affirmati~n in Oppositionatid in Support ofCross-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 ofNew

; Yotk is no longer current. Moreover, Defetjdatit argues that Plaintiffs default judgment motion should be denied on 

### thefollowing grounds: 1) Mr. TuKang Yang; who had signed the Promissory Note on-behalfcfDefendant

### in2014, was n~ver a manager 

### or had independent authority to do; 2) Plaintiffhas 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 soughtto vacate the default, pursuant to CPtR 

### 317, onthe grounds thatitwas not personally serVed with the- pleadings, arid

- alternatively, requested that Plaintiffbe compelled to accept its late Answer. In reply; Plaintiffaverred thathe is in physical possession ofthe original Promissory Nate, and notes that Mr. Landau was not au_o\.Vller or member ofthe Def"endant .on or about April 25, 2014- the date when Plaintiffremitted two c.ashier' s checks to Defendant. Mr; TuKartg Yang, who was DefendanCs manager at the time, acknowledged·receipt ofthe checks in writing, and signed the promissory note. Therefore, PlaintiffmaititainsthatMr. Landau lacks personal knowledge ofthe transactions in dispute. 

### After a m~ticulous examination of

### the respecti

### y~_ submissions, Plaintiffs instarit motion for a defaultjudgment is granted; 

### and I)efendant~s cross~1notion to dismiss/compel acceptance 

### of

3



### [* 3]

### FILED: KINGS COUNTY CLERK 08/23/2024 12:46 PM INDEX NO. 516840/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/23/2024

4 of 5 .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(

### AdvanceFunding Corp., 55 

### AD3d 

### 669, 670 [2d Dept 

### 2008]; Levi v Levi, 

### 46 AD3d519 [2d Dept 

### 2007]; 599Ralph

### Ave. Dev., 

### LLC. v 799 

### Sterling Inc., 

### 34AD3d 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 § 306) does not·constitute areasonable excuse 

### (Lqwrence 

### v. Esplanade Gardens; 213 AD2d 216.[PtDept 1995]; 

### Cedeno v. Wimbledon Bldg; Co,p., 

### 207 AD2d 297 [1 st Dept 1994];Crespo v. A,D.A. Mgmt;, 292AD2d 5, 9'-10 [1st Dept 2002]); 

### Widgren v. 313 E. 9thAssoc., 295 AD2d 146 [2002]; Longls; 

### Indus. Group Two LLC
v. 

### Prime CommunicationsInc., 

### l3 Misc3d 127[Al[AppTenn, Tenn, 9th 

### & 10thJud. Dists 2006]). 

### Iri the instant case, Defendantproffered 

### 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 ofState ofNew York 

### with an address of46'-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 thatit didnptupdate the Secretary ofStatewithits
newaddress, despite the 

### factthat Mt. 

### Landau affirms thatthe 

### membership 

### ofDefendant changed 

### oyer the 

### last 

## year. In fact, 

### Defendant does 

### not contest thatup to 

## the date 

### of Plaintiff's 

### filing 

### ofhis reply~ 

### the entity did notu_pdate its 

### address with the 

### Secretary 

### ofState. 

# No explanation 

### is
4



### [* 4]

### FILED: KINGS COUNTY CLERK 08/23/2024 12:46 PM INDEX NO. 516840/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/23/2024

5 of 5 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 Plaintiffin 2014. Contrary to Defendant's contentions, Plaintiffhas 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 ofthe 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. Plaintiffis awarded ajudgment 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 ofa late answer (motion seq. #2) is denied in its entirety. This constitutes the Decision and Order ofthe Court.

5 t.:,? (.l}

. -;,**~** 

### ,._,, r-~~ 1..0 ·-~ -**~** , .

· YN
. WADE, J.S.C. 

### •~~l!iffV,yn E. Wade Supreme Court Justice



### [* 5]