Adam Leitman Bailey, P.C. was retained by a lender to revive a foreclosure action that was dismissed after a traverse hearing based upon the failure to serve the defendant.
Prior to Adam Leitman Bailey, P.C. being retained in the action, prior counsel filed a motion for an Order of Reference which Defendant opposed by cross-motion arguing that he was not served. In response, the Court scheduled a traverse hearing.
Prior to the traverse hearing taking place, Plaintiff filed a motion pursuant to CPLR § 306-b seeking to extend the time to serve the Defendant.
Defendant testified at the traverse hearing that he was not served and the Court finding his testimony credible found in favor of Defendant and dismissed the action. The Court also denied the CPLR § 306-b motion.
At this point, Adam Leitman Bailey, P.C was retained to take over the action on behalf of the lender. Adam Leitman Bailey, P.C began an immediate investigation of the matter determining that Defendant’s testimony at the traverse hearing was demonstrably false. Accordingly, Adam Leitman Bailey, P.C. moved by Order to Show Cause pursuant to CPLR § 5015 (a)(3) to vacate the prior order. Adam Leitman Bailey, P.C.’s motion papers clearly showed that Defendant misrepresented multiple facts at the Traverse hearing and his testimony should not have been given any credibility. Despite this evidence, the Court denied Adam Leitman Bailey, P.C.’s motion on procedurally grounds without addressing the merits of the motion.
Adam Leitman Bailey, P.C. only remaining choice was to appeal all the orders in this action. Adam Leitman Bailey, P.C. in its papers recounted how the Defendant’s testimony of the events of the day of service was impossible. The appellate papers were fully briefed and argued.
Ultimately, the Second Department ruled in favor of the lender determining that the lower court should have granted the Plaintiff’s motion pursuant to CPLR § 306-b. In a deeply reasoned decision, the Second Department distinguished the good cause and interest of justice standards of CPLR § 306-b and held that while Plaintiff failed to establish good cause for the extension, under the interest of justice of standard the Court should have granted Plaintiff’s motion.
Jeffrey R. Metz, Esq. of the Appellate Practice Group at Adam Leitman Bailey, P.C. secured this result for the Lender.