State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519349 

________________________________

THE BANK OF NEW YORK MELLON,

Formerly Known as THE BANK 

OF NEW YORK, as Successor-inInterest to JPMORGAN CHASE

BANK, NATIONAL ASSOCIATION

Formerly Known as JPMORGAN

CHASE BANK, as Trustee for

BEAR STEARNS ASSET BACKED

SECURITIES TRUST 2003-3,

ASSET BACKED CERTIFICATES,

SERIES 2003-3,

Respondent, MEMORANDUM AND ORDER

v

LESLIE J. JINKS et al., 

Appellants, 

et al., 

Defendants.

________________________________

Calendar Date: February 17, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

True Walsh & Sokoni, LLP, Ithaca (Khandikile M. Sokoni of

counsel), for appellants.

Parker Ibrahim & Berg, LLC, New York City (Melinda Colon

Cox of counsel), for respondent.

__________
-2- 519349 

Clark, J.

Appeal from an order of the Supreme Court (Mulvey, J.),

entered April 21, 2014 in Tompkins County, which, among other

things, granted plaintiff's motion for an extension of time to

serve a reply to certain counterclaims.

In November 1968, defendants Leslie J. Jinks and Marie

Patricia Jinks (hereinafter collectively referred to as

defendants) purchased a parcel of property located in the City of

Ithaca, Tompkins County. Approximately 30 years later,

defendants executed a note and mortgage on their property and,

after a series of successive assignments, plaintiff became the

holder of the note and mortgage. In August 2013, plaintiff

commenced the instant action alleging that defendants were in

default of their mortgage and seeking foreclosure of their home. 

Defendants answered and asserted counterclaims alleging, among

other things, that plaintiff had unjustly modified their mortgage

payment requirements and had misled defendants by requiring them

to repeatedly complete onerous loan modification applications to

no avail. After failing to timely reply to defendants'

counterclaims, plaintiff moved for an extension of time to

answer. Defendants opposed said motion and cross-moved for a

default judgment against plaintiff. After a hearing, Supreme

Court granted plaintiff's motion and denied defendants' cross

motion. Defendants now appeal arguing that Supreme Court abused

its discretion in excusing plaintiff's default.

Pursuant to CPLR 3012 (d), Supreme Court possesses the

discretion to extend a party's time to serve an answer "upon a

showing of reasonable excuse for delay or default" (see Watson v

Pollacchi, 32 AD3d 565, 565 [2006]; Amodeo v Gellert &

Quartararo, P.C., 26 AD3d 705, 706 [2006]; Aabel v Town of

Poughkeepsie, 301 AD2d 739, 739-740 [2003]). "Whether to grant a

party's application in this regard is a matter committed to

Supreme Court's sound discretion following due consideration of,

among other things, the length of the delay, whether such delay

was willful and whether the opposing party suffered prejudice as

a result" (Strumpf v Massachusetts Mut. Life Ins. Co., 125 AD3d

1239, 1240 [2015] [citation omitted]; see Dinstber v Allstate

Ins. Co., 75 AD3d 957, 957-958 [2010]). 
-3- 519349 

Here, apparently at some point after being served with

defendants' counterclaims, plaintiff's former counsel transferred

plaintiff's file to another firm, Bryan Cave LLP.1 After

defendants refused to grant plaintiff's request for a courtesy

extension of time to answer – which defendants were well within

their rights to do considering the time to answer had already

passed at the time the request was made – Bryan Cave sought a

court order, pursuant to CPLR 3012 (d), indicating that it had

been only recently retained and that it needed more time to

review the file. No further information concerning the

substitution of counsel or the transfer of the file was provided. 

Although plaintiff's motion papers lacked specific details

of the underlying circumstances, we discern no abuse of

discretion in excusing its default. Certainly, motions such as

this should not simply be granted for the asking, and our

preference is for more thorough motion practice. However, we do

not find the request for an extension by counsel, who was only

recently retained, to be per se unreasonable, even absent the

appreciated additional detail. Furthermore, in light of the

brief delay preceding plaintiff's motion, defendants' inability

to identify any specific prejudice that would result should the

extension be granted and the public policy in favor of resolving

matters on the merits, granting plaintiff's motion was an

appropriate exercise of discretion (see Strumpf v Massachusetts

Mut. Life Ins. Co., 125 AD3d at 1240; compare 333 Cherry LLC v

Northern Resorts, Inc., 66 AD3d 1176, 1177-1178 [2009]). 

Accordingly, we affirm Supreme Court's order granting plaintiff's

motion for an extension of time within which to serve an answer

to defendants' counterclaims and denying defendants' cross motion

for a default judgment.

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.

1 No notice of this change in attorneys, either formal or

informal, appears in the record. 
-4- 519349 

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court