Samuel Kirschenbaum, Respondent, v. Ubaldo Gianelli et al.,

    Appellants Supreme Court, Appellate Division, Third Department, New

                         York June 8, 1978 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