Lanyi v. Wright

JAMES D. PAGONES, J.

Michael A. Martin, Esq., Martin Law Group, P.C., Wappingers Falls, Attorneys for Plaintiff.

Ian S. MacDonald, Esq., Daniels, Porco and Lusardi, LLP, Carmel, Attorneys for Defendants.

JAMES D. PAGONES, J.Defendants move for an order, pursuant to CPLR § 3215, granting them a default judgment against the plaintiff on the grounds that the plaintiff has failed to reply to defendants' counterclaims. Plaintiff cross-moves for an order, pursuant to CPLR 3012(d), extending his time to reply to defendants' counterclaims and compelling defendants to accept service of said reply.

by Mr. Martin, but no consent to change form or reply to defendants' counter-claims. On February 17, 2015, defendants received a copy of the plaintiff's reply to defendants' counter-claims executed by Mr. Martin. On March 30, 2015, defendants received a consent to change attorney form executed by Mr. Wood and Mr. Martin.

Defendants, relying on the Second Department, Appellate Division holding in Giglio v. NTIMP, Inc., 86 A.D.3d 301, 926 N.Y.S.2d 546 [2nd Dept.2011], state that as the defendants' answer with two counterclaims was served upon the plaintiff's attorney of record by mail, the time for the plaintiff to serve a reply to the counterclaims was twenty-five days from the date of service of the answer. Giglio states, as follows:

" CPLR 3012(a) requires that service of an answer or reply shall be made within 20 days after service of the pleading to which it responds ... A reply to the counterclaim was, therefore, due 25 days later by virtue of the five-day extension that is applicable since the reply would have been responsive to a pleading served by mail."

In this action, reply to the counterclaim was served on behalf of plaintiff on or about February 10, 2015, over six months after the deadline for serving the reply. Further, the Giglio Court stated:

"While counterclaims are not specifically mentioned anywhere in CPLR 3215, the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints."

Accordingly, it would appear that plaintiff has defaulted in timely responding to the defendants' counterclaims. However, Mr. Martin aptly refers this Court to the matter of Iovine v. Caldwell, 256 A.D.2d 974, 682 N.Y.S.2d 288 [3rd Dept.1998], a decision of the Third Department, Appellate Division.

The Iovine case involved an action, pursuant to Article 15 of the RPAPL, to compel a determination of the rights of the parties to an entire length of roadway, designated as roadway E. Defendants' answer asserted counterclaims, seeking a determination that one of the defendants was the fee owner of the land lying within the bed of the mapped roadway and that the right plaintiffs may have to access their property over roadway E was by virtue of user or other unrecorded rights. Plaintiffs filed an untimely reply to the counterclaims, which was rejected by the defendants. A motion to compel acceptance of the reply was denied by the Supreme Court.The Iovine Court stated as follows:

"... because defendants' first counterclaim merely controverts the legal theory underlying the complaint and seeks the very same relief, i.e., a declaration of the parties' respective rights and obligations in roadway E, no responsive pleading was required. Serving the function of a denial or, at most, a defense, the purported counterclaim strikes us as harmless surplusage."

As the Second Department has not offered guidance on this precise issue, the Court is therefore guided by the determination of the Third Department in Iovine. As plaintiff's first cause of action seeks a determination of his rights pursuant to Article 15 of the RPAPL, and the defendants first counterclaim seeks a determination of defendants' rights pursuant to the RPAPL, this Court finds that no responsive pleading was required (see Iovine v. Caldwell, 256 A.D.2d 974, 682 N.Y.S.2d 288 [3rd Dept.1998] ). Additionally, defendants' second counterclaim seeking damages under RPAPL § 86, hinges upon a declaration of the parties' rights as to the disputed property. Thus, any judgment thereon is not warranted at this time.

Accordingly, defendants' motion for a default judgment is denied. The cross-motion is denied as academic. The parties are directed to appear for a preliminary conference on November 23, 2015 at 9:30 a.m. Adjournments are only granted with leave of the Court.