SUMMARY
Appeal from an order of the County Court of Sullivan County, entered
November 17, 1977, which affirmed a judgment of the Justice Court of
the Town of Delaware, granting petitioner's application to recover
possession of real property. On July 15, 1975, the First National
Bank of Jeffersonville obtained a judgment of foreclosure and sale
against the premises of defendant, Ubaldo Gianelli, as a result of
his failure to pay principal and interest due upon its mortgage in
the sum of $7,000. Prior to the sale of the property, defendant
Gianelli consulted with plaintiff, attempting to obtain financial
assistance. Subsequently, plaintiff induced the bank to adjourn the
sale, giving his personal assurance that its position would be taken
over before the adjourned date if defendant Gianelli had not yet
found financial backing to take over the mortgage. When it later
became evident that defendant Gianelli was unable to obtain such
backing, plaintiff paid the bank the amount due, took an assignment
of the mortgage, and continued the foreclosure action against
defendant Gianelli, apparently without objection from the latter. The
foreclosure sale was held on August 16, 1976, with defendant Gianelli
present, at which time plaintiff was awarded the property upon his
$500 bid. Plaintiff brought no immediate action for eviction,
apparently believing that defendant Gianelli would buy back the
property through monthly payments. Finally, In June, 1977, when no
such payments were forthcoming, defendants were served with a notice
to quit, followed by summary proceedings in the Justice Court, Town
of Delaware, to recover the possession of the property pursuant to
article 7 of the Real Property Actions and Proceedings Law.
Defendants were served with the notice of petition and petition on
August 2, 1977. Section 743 of the Real Property Actions and
Proceedings Law provides that if the notice of petition is served at
least eight days before the time at which it was noticed to be heard
and it so demands, the answer shall be made at least three days
before the petition is noticed to be heard. The parties adjourned the
matter to August 25. Despite plaintiff's demand in the notice of
petition, the defendants made no *1058 answer at all, but instead,
moved on August 25 to dismiss pursuant to CPLR 3211 (subd [a], par
2), alleging that an issue of title existed and that the Justice
Court lacked subject matter jurisdiction over that issue. The only
affidavit in support of this motion was furnished by the defendants'
attorney upon information and belief. When the motion was denied,
defendants unsuccessfully sought an extension of time to answer. On
appeal to County Court the judgment was affirmed. We reject
defendants' contention that the Justice Court was divested of its
subject matter jurisdiction over the case simply because an issue of
title was raised as a defense. Subdivision 2 of section 747 of the
Real Property Actions and Proceedings Law specifically provides that
the judgment of a court of limited jurisdiction shall not bar an
action for " affirmative equitable relief" which has been barred from
the summary proceeding because of the court's limited jurisdiction.
There is no merit to defendants' contention that even if the Justice
Court was not divested of its jurisdiction, the court erred in
refusing to grant defendants an extension of time to responsively
plead to the petition. A responsive pleading was required at least
three days prior to the time the petition was noticed to be heard.
Although the motion to dismiss under CPLR 3211 (subd [a], par 2)
could be timely made after the time to answer had expired,
interposition of this motion cannot be used as a subterfuge to extend
the time to answer after a default. If this motion had been made
within the time to answer, then defendants would have been entitled
to a 10-day extension to answer under CPLR 3211 (subd [f]). The
Justice Court was not under a duty to extend the time to answer in
this case since the motion was made after expiration of the period
for response. Consequently, Justice Court correctly denied defendants
an extension of time to serve a responsive pleading.
Order affirmed, without costs.
Greenblott, J. P., Sweeney, Larkin, Mikoll and Herlihy, JJ., concur.
Copr. (c) 2005, Randy A. Daniels, Secretary of State, State of New
York.
N.Y.A.D.,1978.
KIRSCHENBAUM V GIANELLI
SUMMARYAppeal from an order of the County Court of Sullivan County, entered
November 17, 1977, which affirmed a judgment of the Justice Court of
the Town of Delaware, granting petitioner's application to recover
possession of real property. On July 15, 1975, the First National
Bank of Jeffersonville obtained a judgment of foreclosure and sale
against the premises of defendant, Ubaldo Gianelli, as a result of
his failure to pay principal and interest due upon its mortgage in
the sum of $7,000. Prior to the sale of the property, defendant
Gianelli consulted with plaintiff, attempting to obtain financial
assistance. Subsequently, plaintiff induced the bank to adjourn the
sale, giving his personal assurance that its position would be taken
over before the adjourned date if defendant Gianelli had not yet
found financial backing to take over the mortgage. When it later
became evident that defendant Gianelli was unable to obtain such
backing, plaintiff paid the bank the amount due, took an assignment
of the mortgage, and continued the foreclosure action against
defendant Gianelli, apparently without objection from the latter. The
foreclosure sale was held on August 16, 1976, with defendant Gianelli
present, at which time plaintiff was awarded the property upon his
$500 bid. Plaintiff brought no immediate action for eviction,
apparently believing that defendant Gianelli would buy back the
property through monthly payments. Finally, In June, 1977, when no
such payments were forthcoming, defendants were served with a notice
to quit, followed by summary proceedings in the Justice Court, Town
of Delaware, to recover the possession of the property pursuant to
article 7 of the Real Property Actions and Proceedings Law.
Defendants were served with the notice of petition and petition on
August 2, 1977. Section 743 of the Real Property Actions and
Proceedings Law provides that if the notice of petition is served at
least eight days before the time at which it was noticed to be heard
and it so demands, the answer shall be made at least three days
before the petition is noticed to be heard. The parties adjourned the
matter to August 25. Despite plaintiff's demand in the notice of
petition, the defendants made no *1058 answer at all, but instead,
moved on August 25 to dismiss pursuant to CPLR 3211 (subd [a], par
2), alleging that an issue of title existed and that the Justice
Court lacked subject matter jurisdiction over that issue. The only
affidavit in support of this motion was furnished by the defendants'
attorney upon information and belief. When the motion was denied,
defendants unsuccessfully sought an extension of time to answer. On
appeal to County Court the judgment was affirmed. We reject
defendants' contention that the Justice Court was divested of its
subject matter jurisdiction over the case simply because an issue of
title was raised as a defense. Subdivision 2 of section 747 of the
Real Property Actions and Proceedings Law specifically provides that
the judgment of a court of limited jurisdiction shall not bar an
action for " affirmative equitable relief" which has been barred from
the summary proceeding because of the court's limited jurisdiction.
There is no merit to defendants' contention that even if the Justice
Court was not divested of its jurisdiction, the court erred in
refusing to grant defendants an extension of time to responsively
plead to the petition. A responsive pleading was required at least
three days prior to the time the petition was noticed to be heard.
Although the motion to dismiss under CPLR 3211 (subd [a], par 2)
could be timely made after the time to answer had expired,
interposition of this motion cannot be used as a subterfuge to extend
the time to answer after a default. If this motion had been made
within the time to answer, then defendants would have been entitled
to a 10-day extension to answer under CPLR 3211 (subd [f]). The
Justice Court was not under a duty to extend the time to answer in
this case since the motion was made after expiration of the period
for response. Consequently, Justice Court correctly denied defendants
an extension of time to serve a responsive pleading.
Order affirmed, without costs.
Greenblott, J. P., Sweeney, Larkin, Mikoll and Herlihy, JJ., concur.
Copr. (c) 2005, Randy A. Daniels, Secretary of State, State of New
York.
N.Y.A.D.,1978.
KIRSCHENBAUM V GIANELLI