PNC Bank, N.A. v. Kane

Opinion

PNC Bank, N.A. v Kane

2026 NY Slip Op 04967

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

PNC Bank, National Association, respondent,

v

Florence Kane, etc., et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-11229, 2024-12813, (Index No. 617459/22)

Angela G. Iannacci, J.P.

Valerie Brathwaite Nelson

Paul Wooten

Janice A. Taylor, JJ.

Tarbet & Lester, PLLC, East Hampton, NY (Brian J. Lester of counsel), for appellants.

McGlinchey Stafford PLLC, New York, NY (Matthew J. Gordon and Mikelle V. Bliss of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Florence Kane and Penelope Kane appeal from (1) an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated September 16, 2024, and (2) an order of the same court dated September 20, 2024. The order dated September 16, 2024, denied the motion of those defendants to compel the plaintiff to accept their late answer and granted the plaintiff's cross-motion for leave to enter a default judgment against those defendants. The order dated September 20, 2024, insofar as appealed from, denied the same relief to those defendants and granted the same relief to the plaintiff.

ORDERED that the order dated September 16, 2024, is reversed, on the law, the motion of the defendants Florence Kane and Penelope Kane to compel the plaintiff to accept their late answer is granted, the plaintiff's cross-motion for leave to enter a default judgment against those defendants is denied, and so much of the order dated September 20, 2024, as denied that motion of those defendants and granted that cross-motion of the plaintiff is vacated; and it is further,

ORDERED that the appeal from the order dated September 20, 2024, is dismissed as academic in light of our determination on the appeal from the order dated September 16, 2024; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

In September 2022, the plaintiff commenced this action against the defendants Florence Kane and Penelope Kane (hereinafter together the defendants), among others, to foreclose a mortgage on certain residential property located in Shirley. The defendants moved, pre-answer, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The motion was denied in June 2023. On October 5, 2023, the defendants served an answer with counterclaims. Twenty days later, on October 25, 2023, the plaintiff rejected the answer as untimely. Thereafter, the defendants moved to compel the plaintiff to accept their late answer, contending, inter alia, that the plaintiff waived any objection to the timeliness of the answer by failing to object to the same [*2]within 15 days of receiving it. The plaintiff cross-moved for leave to enter a default judgment against the defendants. In an order dated September 16, 2024, the Supreme Court denied the defendants' motion and granted the plaintiff's cross-motion. In an order dated September 20, 2024, the court, among other things, denied the same relief to the defendants and granted the same relief to the plaintiff. The defendants appeal.

Pursuant to CPLR 2101(f), "[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections." Here, the plaintiff's undisputed failure to reject the defendants' answer within the 15-day statutory time frame constituted a waiver of the late service and the default (see Globalized Realty Group, LLC v Crossroad Realty NY, LLC, 239 AD3d 950, 952; U.S. Bank N.A. v Lopez, 192 AD3d 849, 850; Glass v Captain Hulbert House, LLC, 103 AD3d 607, 608-609). Accordingly, the Supreme Court should have granted the defendants' motion to compel the plaintiff to accept their late answer and denied the plaintiff's cross-motion for leave to enter a default judgment against the defendants (see U.S. Bank N.A. v Lopez, 192 AD3d at 850-851; Glass v Captain Hulbert House, LLC, 103 AD3d at 609).

The parties' remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court