The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 16-24; 26-43 Answering Papers 46-48 Reply 50 Decision/Order Plaintiffs commenced this action on April 26, 2022 to recover upon causes of action sounding in foreclosure of a mechanic’s lien, breach of an agreement with defendant Orlando, unjust enrichment, for imposition of a constructive trust in favor of plaintiff Sokel, and a declaration that any contracts, deeds or other documents affecting the real property known as 9 Church Lane, Westhampton Beach, New York are null and void based upon wrongful dissolution of their partnership.1 It is alleged that the plaintiffs and defendant Orlando agreed to purchase the subject property for the purpose of remodeling it and either renting it out or selling it. There is no claim that the subject premises is the residence of either of the individual parties to this action. It is undisputed that the subject premises are held solely in the name of defendant Orlando. According to the allegations made in the complaint, Orlando paid the down payment on the premises and obtained the mortgage, while plaintiff Sokel agreed to incur the costs for the supply of labor and materials necessary for the renovation. Further according to plaintiffs, the premises would be rented out to pay toward the outstanding mortgage. When the premises were sold, they would each be reimbursed for the monies they each had invested toward the purchase and renovation of the premises, and the profit from the sale would be split evenly between plaintiffs and defendant (Sokel and Orlando). Plaintiffs specifically further allege that “[o]n or about July 10, 2021 Orlando abruptly and without cause stated that we were no longer partners in the ownership of the subject premise. Although Orlando told me that he would reimburse me the cost of the labor and materials that I had supplied through my business, Thornwood Construction LLC., for the improvement and renovation of the subject premise, as of this date, no payment of any kind has been made by Orlando…[f]rom on or about July 20, 2021 to the present, on an ongoing and continuous basis, Orlando has continued to rent the subject premise to unknown third parties and has kept all of the rent proceeds earned for himself[;] [t]here were expressed and implied promises by Orlando to me that although legal title to the subject premise was held by Orlando that beneficial title thereto was to be held by the aforesaid partnership or otherwise jointly by Orlando and I…[i]n reliance upon the aforesaid promises, I expended substantial time and effort as well as substantial monies through the supply of labor and materials for the improvement and renovation of the subject premise through my business, Thornwood Construction, LLC…” There is no written partnership agreement between either/both plaintiffs and defendant Orlando. Defendant Orlando was personally served with process in this matter and was given multiple extensions of the time to answer as evidenced by three written stipulations executed by and between plaintiffs’ counsel and defendant Orlando, appearing pro se. The final extension provided defendant an opportunity to answer through August 19, 2022. Defendant Orlando interposed an answer through counsel on August 31, 2022 that was received by plaintiffs’ counsel on September 1, 2022 and rejected. Thereafter, defendant Orlando filed his motion seeking dismissal of the complaint, the notice of pendency and the mechanic’s lien based upon the failure of the plaintiffs to comply with the publication requirements of Limited Liability Company Law (LLC Law) §206 (a) (Motion Sequence 001). Defendant maintains that the LLC may not maintain any action or special proceeding if it has failed to comply with the publication requirements. Thus, Orlando’s motion is made upon the theory that the LLC has not the legal capacity to sue (CPLR §3211 [a] [3]). LLC Law §206 “requires limited liability companies to publish their articles of organization or comparable specified information for six successive weeks in two local newspapers designated by the clerk of the county where the limited liability company has its principal office, followed by the filing of an affidavit with the Department of State, stating that such publication has been completed (Small Step Day Care, LLC v. Broadway Bushwick Bldrs., L.P., 137 AD3d 1102, 1103 [2d Dept 2016]). “Failure to comply with these requirements precludes a limited liability company from maintaining any action or special proceeding in New York (Id.; see also Barklee Realty Co. v. Pataki, 309 AD2d 310, 311 [1st Dept 2003]). Here, plaintiffs commenced this action on April 26, 2022. The defendant Orlando asserts that the LLC has failed to comply with the LLC publication requirements. In response to this branch of the defendant’s motion, Thornwood does not offer any proof that the publication requirements were met before commencing this action on behalf of the LLC. Thornwood merely asserts in opposition that “Orlando, and his counsel have not submitted any evidence in admissible form to support their conclusory statements (Reply/Affirmation in Opposition, 3). Plaintiffs’ contention in this regard is unpersuasive. If the publication requirements had been complied with prior to the commencement of this action by Thornwood, proof of same would reasonably have been expected to be presented to disprove Orlando’s assertion. Thus, it is appropriate for this Court to conclude that Thornwood did not comply with LLC Law §206 before commencing this action, and to dismiss the causes of action asserted by the LLC (First, Second and Third). The defendant Orlando does not claim that the individual plaintiff, Wesley Sokel, lacked capacity to sue; rather, defendant contends that the entire complaint should be dismissed because of the LLC’s failure to comply with the aforementioned publication requirements. This sweeping assertion ignores the fact that the fourth through eighth causes of action are brought on behalf of Wesley Sokel, not the LLC. Accordingly, defendant’s argument for dismissal based on the LLC Law is inapposite to the claims brought by the individual plaintiff. It is undisputed that Orlando failed to interpose his answer in a timely fashion despite having been afforded three extensions of the time to answer. The plaintiffs move for a default judgment against defendant Orlando (Motion Sequence 002). In view of this Court’s dismissal of the causes of action alleged by the LLC plaintiff, the remaining determination to be made is whether to award Wesley Sokel a default judgment against defendant Al E. Orlando. CPLR §3215(f) requires proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. “Where a verified complaint has been served it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney” (CPLR §3215 [f]). In support of the requested default judgment, Sokel submits his own affidavit that refers to the supporting documents in this action. Mr. Sokel’s affidavit establishes the facts constituting his claims against defendant Orlando. The affirmation of plaintiffs’ counsel, Harold A. Steuerwald, Esq., establishes defendant’s default in timely answering the summons and verified complaint despite having been personally served with same. As noted herein, the defendant was afforded three extensions of the time to answer. He requested an additional extension from plaintiffs’ counsel via email on August 26, 2022, which was one week past the third extension granted. Orlando was not granted a fourth extension. Further as noted, defendant interposed a late answer through counsel, which was rejected by plaintiff’s counsel. It is undisputed that Orlando’s interposition of an answer on August 31, 2022 was done without leave of the Court pursuant to CPLR §3012 (d), and even now, the defendant does not request that this Court compel the acceptance of the untimely served answer in accordance with the statute. In any event, whether a court is determining whether to compel a plaintiff to accept a late answer, or to vacate a default although judgment has not yet been entered, the defendant must proffer a reasonable excuse for his default and a potentially meritorious defense (Cruz v. Keter Residence, LLC, 115 AD3d 700 [2d Dept 2014]; HSBC Bank USA, National Association v. Lafazan, 115 AD3d 647 [2d Dept 2014]; Maspeth Federal Savings and Loan Association v. McGown, 77 AD3d 889 [2d Dept 2010]; 599 Ralph Avenue Development, LLC v. 799 Sterling, Inc., 34 AD3d 726 [2d Dept 2006]; Guido v. New York Telephone Company, 133 AD2d 1005 [3d Dept 1987]). The “determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court…” (Lemberger v. Congregation Yetev Lev D’Satmar, Inc., 33 AD3d 671, 672 [2d Dept 2006]; see also Hodges v. Sidial, 48 AD3d 633 [2d Dept 2008]). Orlando’s affidavit (NYSCEF Doc. No. 47) does not purport to assert any defense, let alone a meritorious one. Orlando instead acknowledges in his brief affidavit that he “received several extensions from Plaintiff’s Counsel to Answer,” and that the last extension was to August 19, 2022. Orlando asserts that “[m]e and Mr. Sokel were still in discussions past the August 19, 2022 extension date and then on August 26, 2022, I sent an e-mail to Plaintiff’s Counsel for another extension…I never received any further communication from Plaintiff’s Counsel, so on August 31, 2022, I retained George A. Huwel, Esq. to represent me and file an Answer.” Orlando was “hoping that for being 12 days late, [he] could avoid a default.” Mr. Orlando’s assertion that he was negotiating directly with Mr. Sokel, who was represented by counsel at that point, is unsubstantiated and does not constitute a reasonable excuse in this Court’s view (see Bank of America v. Viener, 172 AD3d 795 [2d Dept 2019]; Mannino Development, Inc. v. Linares, 117 AD3d 995 [2d Dept 2014]; Weiss v. Kahan, 209 AD2d 611 [2d Dept 1994]). Although the Court need not consider whether the defendant has asserted a potentially meritorious defense in light of this determination, the Court also determines that defendant Orlando has not proffered such a defense. The defendant’s verified answer consists of general denials, and it asserts three affirmative defenses. The first two affirmative defenses are related to Thornwood’s failure to comply with the LLC Law, which this Court has determined do not apply to Sokel’s claims. The third perfunctory defense alleges that the “Cause of Action may not be maintained because of the Statute of Frauds.” It is unknown to which “Cause of Action” this defense is directed, and in any event, the causes of action alleged by Wesley Sokel sound in constructive trust and unjust enrichment to which the Statute of Frauds does not necessarily apply (see Hernandez v. Florian, 173 AD3d 1144 [2d Dept 2019]). Having failed to offer a reasonable excuse for his default or a potentially meritorious defense, the defendant has not relieved himself of his default in answering. Accordingly, the motion for a default judgment is granted as to those causes of action alleged by plaintiff Wesley Sokel. Submit judgment on notice. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [X] NON-FINAL DISPOSITION [] Dated: February 7, 2023
