SUPREME COURT STATE OF NEW YORK COUNTY OF NASSAU. PRESENT: HON. IRA B. WARSHAWSKY, Justice. TRIAL/IAS PART 7

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1 ... SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. IRA B. WARSHAWSKY, Justice. TRIAL/IAS PART 7 BUCK REALTY OF LONG ISLAND, INC. Plaintiff, INDEX NO. : /2011 MOTION DATE: 6/27/ against - SEQUENCE NO. : 001, 002 SHA WN ELLIOTT, SHAWN ELLIOTT LUXURY HOMES, INC., SHAWN ELLIOTT' S LUXURY HOMES AND ESTATES, LLC Defendants The following documents were read on this Motion: Motion to Vacate Default, Dismiss Complaint, or Serve Amended Verified Answer Memorandum of Law in Support of Motion Cross-Motion for Default Judgment, Schedule Inquest to Determine Damages, Granting Sanctions and Attorney Fees... Reply Affirmation in Further Support and Opposition to Cross- Motion... Memorandum of Law in Further Support of Motion PRELIMINARY STATEMENT Defendant moves to vacate a default in answering, for dismissal of the complaint, alternatively, for leave to serve an amended verified answer. Plaintiff cross-moves for default judgment against Shawn Elliott Luxury Homes, Inc. ("SELH") and Shawn Elliott'. Luxury Homes and Estates, Inc. ("SELHE"

2 BACKGROUND This action involves a claim by plaintiff that based upon a claimed November agreement between it and the Elliott defendants, under which it was entitled to a 50% share of the brokerage fee obtained by the defendants in connection with the sale of 20 Wenwood Drive, Brookvile, New York. The closing occurred on July 23, 2010 at which time Wayne Steck and his wife, Lori Steck conveyed title to Emanuel Mizrahi. According to the HUD Settlement Statement, the purchase price was $ and brokerage commissions were paid in the amount of $81,250 to Shawn Ellott and $ to Century 21. The complaint alleges that plaintiff, acting on behalf of of Mr. and Mrs. Steck retained Shawn Elliott to sell the property owned by the Stecks, in return for which they would receive a 50% share of Elliott' s real estate commission. Mr. Steck, himself a real estate developer, adamantly denies authorizing Morton Buckvar, Esq., the principal of Buck Realty, and a friend of20 years duration, to act on his behalf in listing the property. He contends that some nine years ago, when he and his wife constructed the home, and were considering flpping it, Buckvar introduced his wife to Shawn Ellott, a residential real estate broker who was active in the Brookvile area. Buck Realty, he states, is a commercial real estate brokerage. The listing agreement, attached to his affidavit, is between Mr. There is no mention of any other broker. According t SELHE. affidavit, he chose to list his propert with SELHE based upon his prior experience with a representative of that firm when he sold a home in Cold Spring Harbor, and they agreed to reduce their commission to 4 Y2%, as opposed to the alleged 7% referred to in the complaint. The action was commenced against the corporate defendants by service upon the Sec. of State on March 16, On April 20, 2011 Alan Ross, the attorney who handled the Stecks ' real estate transactions, served a verified answer to the complaint. The answer was verified by Mr. Ross, as opposed to his clients. By notice dated April 20, 2011 Buckvar rejected the answer on behalf of the corporate defendants on the grounds that it

3 was untimely and that it was not verified by the client, despite the fact that the client resides, and does business in, the county in which counsel maintained his office. By document is dated April 28, 20 II, The Scher Law Firm was substituted in place of Alan Ross, Esq. According to the affirmation of Austin Graff, Esq., of the incoming firm, he telephoned counsel for plaintiff on April 27, 2011, at which time he learned that an answer had been served by prior counsel, but that Mr. Buckvar had rejected it as untimely, and because the verification was executed by counsel as opposed to the client. A request for the courtesy of permitting a correction to the verified answer was rejected. Defendant now seeks to vacate the default, if there was one, for dismissal of the complaint, or, in the alternative, for leave to serve an amended verified answer in the form attached to the moving papers. Plaintiff opposes the motion and cross-moves for a default judgment, an inquest to determine damages, the award of sanctions against defendants and counsel fees. DISCUSSION Service upon SELH was completed on March , giving defendant 30 days within which to answer, serve a notice of appearance, or make a motion having the effect of extending the time within which to answer. CPLR 320 (a). The verified answer on behalf of defendants dated April 19, 2011, mailed on April 20, 2011, was technically late. The verification by Mr. Ross on behalf of his clients was also technically defective in that Mr. Ross maintains an office for the practice of law in Nassau County, where all defendants reside or maintain their principal place of business. On March 28, 2011, plaintiffs served Shawn Ellot at his usual place of business 8037 Jericho Tpke., Woodbury, New York, by serving a person of suitable age and discretion. On the same date they served a housekeeper at Mr. Ellot' s residence, 282 Anchorage Avenue, Woodbury, New York. When service is made upon a person of suitable age and discretion at the residence or place of business of the party to be served, a copy must also be mailed in an envelope

4 marked "personal and confidential" within 20 days of personal service. Proof of such service must be fied, and service is complete 10 days after such filing. CPLR ~ 308 (b). Service upon a corporation may also be made by service upon an officer, director managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. CPLR ~~ 311. Service of process upon a limited liability company may be made by personally delivering a copy to any member of the limited liabilty company in this state, if the management of the limited liabilty company is vested in its members; upon a manager of the company if management is vested in one or more managers; to any agent authorized by appointment to receive process; or, to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant. Where plaintiff has made use of two modes of service of process providing for two different periods within which to answer, the defendant has until the last day of the longer period for service of an answer. (Olson v. Jordan 181 Misc. 942 (Sup. Ct. N.Y. Co. 1943)). Service upon both the corporation and the limited liabilty company were made by service upon a person of suitable age and discretion. Service is therefore complete 10 days after filing proof of service. Plaintiff annexes as Exh. "8" to the Cross-motion a statement pursuant to CPLR ~ 3215 (g)(3) that service of the attached summons and complaint was "completed on March, 2011". Service was not "complete" on March 28, The affidavits of service upon persons of suitable age and discretion reflect mailing on March 29, 2011, but are silent as to filing of proof of service, which would trigger the 10-day period before service is complete. Even if proof was fied on the day of mailing, the time within which to answer would not commence until April 9, 2011, making the April 19, 2011 answer on behalf of all defendants timely. Plaintiffs motion for default is denied. Even if the answer were untimely, the

5 Cour would, in the absence of a showing of prejudice to plaintiff, exercise its discretion to extend the time within which to serve an answer. CPLR 3012 (d). This is particularly so since the delay in answering the complaint, if there were one, was minimal, the answer asserted a meritorious defense, and the plaintiff was not prejudiced by the delay. (Nuila Manhattan Leasing Group, Inc., 204 A. 2d 290 (2d Dept. 1994); Bardi v. Warren County Sherif' s Dept. 194 A. 2d 21 (3d Dept. 1993)). The principle that pleading defects should be disregarded if no substantial right is prejudiced is applicable with respect to verification. As part of the pleadings aricle of the CPLR, they are subject to CPLR ~ 3026, which simply states that " (p )leadings shall be liberally construed. Defects shall be ignored if a substantial right of a par is not. prejudiced". The rejection of the pleading for improper verification was prompt and specified the reason why the verification was defective. Verification is a somewhat arcane requirement, and there is "so scant advantage emanating from verification that the part who deems herself entitled to a verified pleading can be deemed unprejudiced if she doesn t get it". SIEGEL, NEW YORK PRACTICE ~ 255 (4 ed. ). In Mendicino Green Apartment Corp. v. Casimir 32 Misc. 1220(A) (N.C.Dist. Ct. 2011), the Court adopted the principle that"... a verification, as part of a pleading, should be liberally construed, ignoring defects unless a substantial right of a part is prejudiced", citing SLG Graybar, LLC v. John Hannaway Law Offces, 182 Misc.2d 217, 222 (Civ.Ct., New York Co., 1999). Defendants' motion to dismiss the complaint is denied. The motion for leave to serve an amended verified answer in the form annexed to the moving papers is granted. Defendant is directed to serve an amended and properly verified answer within 20 days of the date of this Order. This constitutes the Decision and Order of the Court. Dated: August 30, 2011 ENTERED SEP NA8I COUNTY COUNTY CLII" OFFICE