In an action to quite title, plaintiff moves for leave to renew a prior motion for an order granting default judgment (Motion Seq. 2).

1. Notice of Motion/Affirmation of Shane-Ray Brown, Esq./Exhibits A-E/Affidavit of Service

By way of background, plaintiff commenced this action by filing a summons and complaint on October 14, 2021 to quite title of plaintiff's property located at XXXXXX Avenue in Mount Vernon, New York.

Previously, upon defendants' default in answering or appearing, plaintiff moved for an order granting default judgment. The Court denied the application because the application was made over one year and three months after defendant's default,^[FN1] and plaintiff did not explain, let alone show good cause, why the application was not made within one year of defendant's default pursuant to CPLR 3215(c).

Plaintiff now moves for leave to renew the prior motion for an order granting default [*2]judgment. The motion is unopposed.

In support of the motion, plaintiff's counsel argues that the deadline for default judgment was not properly calendared due to law office failure and consequently the following facts were not presented in support of the initial application.

Counsel contends that he was in discussions with defense counsel regarding this matter until they reached an impasse and on February 10, 2023, plaintiff filed a Request for Judicial Intervention (RJI) for a preliminary conference to set dates for motions and/or trial. Counsel argues that a preliminary conference was held on March 21, 2023 and prior to that conference, defense counsel informed plaintiff that defense counsel would not be appearing at the hearing or filing a notice of appearance in this case, and a subsequent preliminary conference was held on May 31, 2023, wherein the Court calendared a date for plaintiff to move for default judgment.

Plaintiff submits, among other things, correspondence from defense counsel demonstrating counsels' attempts to resolve the matter beginning in February 2022 and defense counsel's position vis-à-vis a determination of its rights as of March 2023.

CPLR 2221(e) provides:

A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Herein, plaintiff has satisfied the requirements for leave to renew.

In support of the default application, plaintiff submits the initial affirmation in support of the motion for default judgment and affidavits of service.^[FN2] In the previous application, plaintiff argued that she and her former husband purchased the subject property in 1974 from the United States Department of Veterans Affairs (VA) and that following her divorce and separation, she has been maintaining, controlling, and owning the property since December 1985, including paying a mortgage with Bank of America on the property. Plaintiff only learned that the mortgage was not recorded after she requested a letter of satisfaction when she completed payments on the mortgage and Bank of America informed her none was needed because the [*3]mortgage was never recorded.

Plaintiff has requested from the VA a copy of the deed but to no avail. Additionally, a title search failed to find any record of herself or her ex-husband owning the subject property.

"On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing" Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2d Dept 2017]). In determining whether plaintiff's cause of action is viable, "[t]he court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (id.).

The Court is satisfied that defendant was served with process and has failed to timely appear in response thereto and that plaintiff has a meritorious claim (cf. Acocella v Wells Fargo Bank, N.A., 139 AD3d 647, 649 [2d Dept 2016] ["To maintain an equitable quiet title claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title, such as in a deed or other instrument, that is actually invalid or inoperative"]). Here, plaintiff has demonstrated her actual possession of the property and a removable cloud on the property, i.e., the specter of the VA's apparent interest in the property in the absence of a deed for the property titled in her name.

Based on the foregoing, it is hereby

ORDERED that plaintiff's motion to renew its prior motion for default judgment (Motion Seq. 2) is GRANTED; and upon renewal, it is further

ORDERED that plaintiff's application for default judgment in favor of plaintiff and against defendant for the relief demanded in the complaint is GRANTED; and it is further

ORDERED that plaintiff is directed to submit a proposed order, in accordance with the relief requested in the complaint and as directed herein, within thirty (30) days of entry of this Decision and Order.