The following papers were used on these motions: pro se summons and complaint and attachments filed August 23, 2022 (Kings County Clerk file); NYSCEF Doc Nos. 17, 44-50, 52-73.

Plaintiffs Sharon Cooper (also known as Sharon Cooper Nichols) and Tyrone Nichols herein move in Motion Sequence No. 3 for a default judgment against Defendant Janice Bogues, individually and as the executrix of the Estate of James Bogues, and said Defendant cross-moves in Motion Sequence No. 4 for dismissal of the action based on Plaintiffs' failure to take proceedings for the entry of judgment within one year after default, for cancellation of the notice of pendency filed by Plaintiffs, and to compel Plaintiffs to accept Defendant's answer.

On July 14, 2023, this Court issued an order consolidating a Kings County landlord-tenant action, Bogues v Cooper (Kings County Civil Court L&T Part Index No. 300103/KI), with the within action, and granting leave to Plaintiffs to serve an amended complaint. The amended complaint alleged causes of action to impress a constructive trust in favor of Plaintiffs on the premises known as 246 Saratoga Avenue, Brooklyn, New York, to quiet title, for unjust enrichment, for a declaratory judgment, and for specific performance and breach of contract. The amended complaint was served on July 19, 2023, on Defendant's counsel.

Plaintiffs, in their motion for a default judgment pursuant to CPLR 3215 (a), (b), filed on September 5, 2024, argue that the time for Defendant to answer or move with respect to the amended complaint expired.

Defendant, in opposition to Plaintiffs' motion and in support of her cross-motion, argues that Plaintiffs failed to move for a default judgment within the one-year deadline prescribed by CPLR 3215 (c), and, therefore, the action should be dismissed. Alternatively, Defendant argues that she should be permitted to file and serve an answer to the amended complaint.

Defendant, citing CPLR 3025 (d), posits that the deadline for her serving the answer was August 8, 2023, which was 20 days after service of the amended complaint on July 19, 2023 in person on Defendant's attorneys. Thus, the one-year deadline to move for a default judgment was August 8, 2024. By waiting for September 5, 2024 to make their motion, Plaintiffs exceeded the one-year deadline by several weeks. Defendant also notes that the July 14, 2023 order required Plaintiffs to serve and file their amended answer within 30 days, i.e., by August 13, 2023. While service took place on July 19, 2023 (within the order's 30-day deadline), the amended complaint was filed on NYSCEF on September 6, 2023 (past the order's 30-day deadline). As such, maintains Defendant, Plaintiffs' motion should be denied. Finally, Defendant argued during oral argument that Plaintiffs failed to offer evidence of a meritorious claim.

In reply, Plaintiffs points to an entry on eCourts/WebCivil Supreme for the September 25, 2024 preliminary conference: that Plaintiffs were to file for a default judgment prior to September 25, 2024. That was why Plaintiffs thought that they had until that date to file the motion for a default judgment and, in fact, the motion was filed on September 5, 2023. Plaintiffs also argue that they were busy protecting the property by intervening in a foreclosure action, Ajax Mtge. Loan Trust 2023-B v Bogues (Kings County Index No. 527200/2023), thus showing that they have acted responsibly and had no intent to abandon their action against Defendant.

This action was commenced originally by Plaintiffs when they filed a summons and complaint on a pro se basis on August 23, 2022. Per the County Clerk file, no proper proof of service on Defendant Janice Bogues appears. On May 25, 2023, Plaintiffs' counsel filed a notice of appearance on behalf of Plaintiffs. On May 30, 2023, Plaintiffs' counsel filed a proposed order to show cause with supporting papers, bringing on a motion (Motion Sequence No. 2). This Court signed it on July 7, 2023. The order to show cause was returnable July 14, 2023.

On July 14, 2023, the underlying dispute was clarified for the Court. It was Plaintiffs' contention that James Bogues (whom their father knew to own numerous properties), owner of 246 Saratoga Avenue, had rented the house there to them on the condition that they pay rent in the form of paying certain expenses he had incurred on the property, including mortgages, and pay for repairs, and that Mr. Bogues agreed to extend to them an option to purchase the home. In furtherance of the agreement, it was claimed that on March 17, 2012, Mr. Bogues' attorney gave them four copies of a lease with option to purchase agreement to sign. They signed the four copies but none were ever sent back to them with Mr. Bogues' signature. James Bogues died in December 2013 and, during the period of their continued residence in the house afterwards, they paid Mr. Bogues' mortgages and made repairs at their expense. Plaintiffs ended up paying more than the $160,000.00 option price for obtaining title to the property. Through a broker, they continually reached out to consummate the purchase but they received no response to their communications. In 2022, Janice Bogues, executrix of Mr. Bogues' estate, commenced a [*2]holdover proceeding in Kings County Civil Court against Plaintiffs herein. Janice Bogues was successful in obtaining a judgment of possession. It was in the order to show cause which this Court signed on July 7, 2023 that execution on the judgment of possession was temporarily stayed.

The order to show cause brought on Plaintiffs' motion seeking to stay the Civil Court proceeding and remove it to Supreme Court, and for leave to amend the original pro se Plaintiffs' complaint. A proposed amended complaint, prepared by Plaintiffs' newly retained attorney, was included in the papers served and filed in support of the order to show cause. It is this amended complaint—never answered by Defendant—which is the subject of the two motions herein.

Upon conclusion of oral argument on July 14, 2023 on Plaintiffs' motion brought on by order to show cause, this Court issued an order, which appears in the motion record as NYSCEF Doc No. 47. Essentially, this Court ordered that (1) the Civil Court proceeding was removed to Supreme Court and consolidated with the instant action, (2) the eviction proceeding emanating from the Civil Court action was stayed pending the outcome of the instant action, (3) enforcement of a warrant of eviction of occupants of 246 Saratoga Avenue was preliminarily enjoined, (4) the caption of the action was amended to reflect the proper parties (since the Plaintiffs had improperly named others persons as defendants when they prepared their pro se complaint),^[FN1] (5) the action was discontinued against all persons, other than Janice Bogues, named as defendants by Plaintiffs in their pro se complaint, and (6) Plaintiffs were to serve and file an amended complaint within 30 days.

After issuance of the July 14, 2023 order, Plaintiffs served Defendant by delivery of the amended complaint to her attorneys. Per the order, the deadline for serving Defendant was August 13, 2023, i.e., 30 days later. Service was effectuated on July 19, 2023. The deadline for Defendant to serve her answer was August 8, 2023, which was 20 days thereafter, per CPLR 3025 (d). Defendant never answered Plaintiffs' amended complaint. On September 6, 2023, Plaintiffs filed on NYSCEF a copy of the amended complaint.

The following summary of the law in NYCTL 2009-A Trust v Kings Hwy. Realty Co. (147 AD3d 866, 867-868 [2d Dept 2017]) provides guidance for determination of Plaintiffs' motion:

Pursuant to CPLR 3215 (c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a defendant's] default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." "Sufficient cause" requires a showing of a reasonable excuse for the delay in timely moving for leave to enter a default judgment, plus a demonstration that the cause of action is potentially meritorious (see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d 793, 793 [2016]; Ryant v Bullock, 77 AD3d 811, 811 [2010]; Solano v Castro, 72 AD3d 932, 932-933 [2010]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653, 653 [2010]). "The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court" (Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]; see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d at 793; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2014]). However, "reversal is warranted if that discretion is improvidently exercised" (Butindaro v Grinberg, 57 [*3]AD3d 932, 932 [2008]; see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 752).

Clearly, Plaintiffs did not take proceedings for the entry of judgment within one year after Defendant's default. Plaintiffs' motion herein was filed on September 5, 2024. One year after the August 8, 2023 deadline for Defendant to answer was August 8, 2024. Hence, Plaintiffs' lateness equaled 28 days.

However, the Court finds that Plaintiffs possessed sufficient cause for their delay. They were guided by an erroneous posting on eCourts/WebCivil Supreme that they had until September 25, 2024 to make their motion for a default judgment (copy as NYSCEF Doc No. 60). Moreover, Plaintiffs have demonstrated that they did not abandon their claims against Defendant. This is evidenced in their intervention in the foreclosure action on the property during the first half of 2024 (documents contained in NYSCEF Doc No. 67).

Defendant argued that Plaintiffs did not make a showing of a meritorious claim. The Court rejects this contention. As Exhibit C in their motion papers (NYSCEF Doc No. 49), Plaintiffs submitted a copy of the served amended complaint, which was verified by Plaintiff Sharon Cooper as Sharon Cooper Nichols. The amended complaint lays out in detail Plaintiffs' claims, i.e., how they and James Bogues worked out an agreement that they would rent the house from him with an option to purchase it, how Mr. Bogues' attorney sent them four copies of a lease with option to purchase agreement to sign, how they were never sent back any copies signed by Mr. Bogues or anyone else, how they paid Mr. Bogues' mortgages and expended money on improving the house, how they ended up paying more than the purchase price, and how Janice Bogues sought to have them evicted in Civil Court in a holdover proceeding. These detailed allegations constitute a more than sufficient demonstration of meritorious causes of action against Defendant and suffice not only to help excuse Plaintiffs' brief untimeliness in moving for a default judgment but also to serve as "proof of the facts constituting the claim" (CPLR 3215 [f]; see A & J Concrete Corp. v Arker, 54 NY2d 870 [1981]). Plaintiffs have established sufficient cause for the brief delay in making their motion for a default judgment. They have also provided sufficient cause for their amended complaint not being dismissed.

Since there is no effective proof of service of the original pro se complaint, the deadline to move for a default judgment ran from service of the operative complaint, in this instance it being the amended complaint (cf. MTGLQ Investors, L.P. v Shay, 190 AD3d 527 [1st Dept 2021]). Not only does Defendant not dispute that she never answered the amended complaint, she does not even present on these motions a copy of a proposed answer and there is no affidavit of merit from her.

Defendant's argument consists principally of her claim that Plaintiffs' motion is untimely and therefore the entire action should be dismissed. This argument is rejected for the reasons set forth above.

As noted above, Defendant also argued that Plaintiffs filed their amended complaint late, past the 30-day deadline imposed by the Court in its July 14, 2023 order. The Court finds this irrelevant, first because the amended complaint had already been filed on May 30, 2023 on NYSCEF as Doc No. 17 in the format of a proposed amended complaint, as a component of the motion papers in support of the order to show cause. The post-July 14, 2023 order version of the amended complaint (exactly the same) was filed on September 6, 2023 as NYSCEF Doc No. 43 (albeit categorized incorrectly as an "answer (amended)"), which was only 24 days past August 13, 2023, the 30th day after July 14, 2023. Secondly, and more important, the amended complaint was served within 30 days after the July 14, 2023 order. It was delivered to Defendant's attorneys on July 19, 2023, per NYSCEF Doc No. 42. Therefore, the Court rejects [*4]Defendant's argument of late filing of the amended complaint as a basis for denying Plaintiffs' motion for a default judgment.

Moreover, it is noted that Defendant did not make a showing of a meritorious defense to the alleged causes of action. While Plaintiffs submitted the amended verified complaint, verified by one of them, Defendant has not submitted any affidavit of her own to contravene Plaintiffs' factual allegations. There has been no proffer of an excuse for never answering the amended complaint. The legal argument concerning Plaintiffs' not moving for a default judgment within one year does not provide an excuse for Defendant's own failure in ignoring the amended complaint.

"To successfully oppose a motion for leave to enter a default judgment based on a failure to appear or timely serve an answer, a defaulting defendant must demonstrate a reasonable excuse for the delay and the existence of a potentially meritorious defense to the action" (Sena v Alpha Plumbing and Heating Servs., Inc., 227 AD3d 1116, 1117 [2d Dept 2024]; see Sharestates Inv. LLC v Hercules, 166 AD3d 700, 701 [2d Dept 2018]). The determination of a reasonable excuse is left to the court's sound discretion (see JPMorgan Chase Bank, N.A. v Baptiste, 188 AD3d 848 [2d Dept 2020]).

"Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Gately v Drummond, 161 AD3d 947, 949 [2d Dept 2018] [internal quotation marks omitted]).

While it is true that cases should be resolved on the merits, this Court declines to exercise discretion to permit Defendant to file an answer, considering that she has failed to explain why none was ever served and why she believes she has a meritorious defense; and she did not submit a proposed answer in her motion papers. While Plaintiffs have demonstrated that they have continually maintained their effort to acquire title to 246 Saratoga Avenue, Defendant has exhibited willful neglect in opposing Plaintiffs' efforts. Considering the efforts made by Plaintiffs to remain in their home of more than ten years and to finalize the house's status, they should not have to shoulder the burden of further litigation; dragging out this litigation further would severely prejudice them.

Accordingly, IT IS ORDERED as follows:

(1) The Clerk of Kings County shall implement the amendment of the caption of this action to read as follows:

Plaintiffs,   Index No. 523/2022

-against-

Defendant.

(2) Plaintiffs Sharon Cooper and Tyrone Nichols' motion (Motion Sequence No. 3) for a default judgment against Defendant Janice Bogues, individually and as the executrix of the Estate of James Bogues, is GRANTED TO THE EXTENT set forth below with respect to the contents of the judgment to be entered.

(3) The motion (Motion Sequence No. 4) by Defendant Janice Bogues, individually and as the executrix of the Estate of James Bogues, for dismissal of the action based on Plaintiffs' failure to take proceedings for the entry of judgment within one year after default, for cancellation of the notice of pendency filed by Plaintiffs, and to compel Plaintiffs to accept Defendant's answer is DENIED.

(4) Upon submission by Plaintiffs of a proposed judgment in proper form to the Clerk of Kings County, the said Clerk shall enter judgment granting Plaintiffs the following relief in accordance with their amended complaint: