The following electronically-filed papers were read upon this motion: Notice of Motion/Order to Show Cause 37-49; 51-69 Answering Papers 51-69; 72-73 Reply 72-73; 75-76 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order The plaintiff and defendants in this action are related to one another. Plaintiff is the grandmother of defendant Leanne Morganelli, and defendant Christopher Morganelli is Leanne’s husband. It is undisputed that the parties own the subject premises known as 23 Alpine Street, Port Jefferson Station, New York, as tenants in common, with plaintiff owning a 50 percent share, while the Morganellis together own the other 50 percent share. This is, essentially, where the agreement between the parties about the facts of this case ends. Attempts at settlement of this partition action have not succeeded. Presently, the plaintiff resides in Florida and the defendants reside in the subject property. Motion Sequence 001 is plaintiff’s attempt to secure summary judgment in her favor against the defendants, and Motion Sequence 002 is defendants’ opposition to the summary judgment motion, and defendants’ cross-motion for default judgment on the counterclaims asserted in their amended answer, and for an Order compelling responses to discovery, conditional preclusion, an IME of the plaintiff, and sanctions and costs. The Cross-Motion Plaintiff commenced this action on November 12, 2019. The defendants interposed their answer with counterclaims on November 30, 2019, and the plaintiff replied to the counterclaims on December 15, 2019. The original complaint alleged a cause of action for partition and sale of the subject property. The original answer alleged four counterclaims/offsets for the closing costs that were alleged to have been a gift, offset for diminution in value caused by the unfinished renovations undertaken by the plaintiff without defendants’ permission, offset of the plaintiff’s unpaid share of the utilities, and offset of plaintiff’s unpaid share of the mortgage payments On November 10, 2020, during a telephone conference held with the Court, plaintiff’s new counsel made oral application to amend the complaint. Leave to amend was orally granted, over defense counsel’s objection. Thereafter, on November 12, 2020, plaintiff’s new counsel filed an amended complaint. The amended complaint alleges four causes of action for partition, accounting, elder abuse and harassment, and consequential money damages, including legal fees and costs. Although defendants objected to the amendment of the complaint, they nevertheless interposed an answer to ensure that they would not be held in default of answering. The defendants’ amended answer containing the same four counterclaims, plus a fifth counterclaim for attorney fees and costs, was filed on December 1, 2020. Plaintiff did not reply to the counterclaims asserted in the amended answer until January 5, 2021, at which time the defendants filed a written notice of rejection of plaintiff’s reply to the counterclaims as being untimely. Defendants’ contention that the amended complaint was not properly served is waived since defendants have never moved for judgment on that ground, and the time to do so has expired (CPLR §3211 [e]). That branch of the defendants’ motion seeking default judgments on the counterclaims is denied. The delay in replying to defendants’ counterclaims is de minimis, and there is no evidence that plaintiff intends to abandon her defense against the counterclaims asserted in this action. This action, although commenced in 2019, is in the very beginning stages of discovery. Considering the lack of prejudice to defendants and the public policy favoring resolution of cases on their merits, the Court excuses plaintiff’s delay in replying to the counterclaims asserted in the amended answer, and compels defendants to accept the reply filed on January 5, 2021 (see Feder v. Eline Capital Corp., 80 AD3d 554 [2d Dept 2011]). Defendants’ request for sanctions and costs is denied at this juncture without prejudice to renewal should the appropriate circumstances arise. Defendants’ request to compel outstanding discovery and for a conditional order of preclusion will be addressed herein, following determination of the pending summary judgment motion. Summary Judgment Plaintiff moves for summary judgment in her favor on partition and sale of the subject property, for an accounting, and for money damages, including legal fees. Although plaintiff does not annex the pleadings to her papers, she refers to the corresponding NYSCEF document numbers. Plaintiff apparently does not seek summary judgment on the cause of action alleging elder abuse. Plaintiff has failed to establish her prima facie entitlement to summary judgment as a matter of law. Plaintiff’s submission of a photograph of herself and a non-party is irrelevant to the determination of this motion. Plaintiff’s uncertified medical record is also irrelevant, in addition to it not being in admissible form. The various copies of checks and bank statements appended to the instant motion, even if considered to be true and accurate copies of the checks and statements, are not persuasive since many are written to plaintiff herself, or to “Morganelli,” or to one or the other of the defendants. Moreover, the Court will not consider what are presumably plaintiff’s handwritten notes appearing next to the copies purportedly offering explanations as to the purposes of the payments. Plaintiff’s handwritten notes are hearsay offered for the truth of what she has written, and are, therefore, inadmissible. Most importantly, the closing statement annexed to plaintiff’s moving papers belies her claim that she is “not an obligor of the Cenlar mortgage at all.” Plaintiff is listed as one of the borrowers, along with the defendants, on the closing statement, and it appears that she has signed the “Addendum to Closing Disclosure” on March 26, 2018. Also, the attorney fees listed on the closing statement are in the sum of $1,267.00, which is at odds with plaintiff’s claim that she paid $15,000.00 in legal fees. Had plaintiff carried her prima facie burden, the motion would have been denied in any event since documentation submitted in opposition directly contravenes material statements made by the plaintiff in her two affidavits submitted in support of her motion, thereby raising triable issues of fact. The mortgage dated March 26, 2018 unequivocally lists the plaintiff as one of the borrowers, together with the defendants. Plaintiff is also listed as the borrower on the Uniform Residential Loan Application, and all three parties’ signatures appear on the Note. Moreover, the conflicting affidavits of the parties in this action gives rise to significant issues of credibility that this Court cannot determine upon a summary judgment motion.1 Plaintiff’s summary judgment motion is denied. Discovery shall resume with alacrity. The Court will not issue a conditional order of preclusion against the plaintiff at this juncture; however, the plaintiff is hereby directed to provide any and all outstanding discovery, including supplying a Bill of Particulars that was repeatedly demanded by defendants. Plaintiff shall arrange to have her written responses, including the Bill of Particulars, delivered to defendants’ counsel no later than April 8, 2021. Likewise, the defendants shall respond to all discovery demands served upon them, and there shall be a conference of this matter on April 15, 2021, at noon, in order to ascertain the status of discovery. On the date of the next conference, the Court will set a deposition schedule for the parties and issue any necessary discovery Orders. An IME of the plaintiff is likely necessary given her claims that the stress allegedly caused by the defendants has negatively impacted her health; however, any such examination would typically be conducted around the time of, or after, her deposition. The date and time of the virtual conference of this matter has already been set by the Court, and counsel for the parties have been provided with the information necessary for them to attend the Court’s conference. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION NON-FINAL DISPOSITION X Dated: March 11, 2021
