U.S. Bank Trust, N.A. v. Brown

Opinion

U.S. Bank Trust, N.A. v Brown

2026 NY Slip Op 04975

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.

U.S. Bank Trust, N.A., etc., appellant,

v

Jarvis T. Brown, etc., et al., defendants, Dorothy Larrier, respondent.

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

Decided on August 12, 2026

2024-11983, (Index No. 19436/10)

Francesca E. Connolly, J.P.

Barry E. Warhit

Helen Voutsinas

Donna-Marie E. Golia, JJ.

Roach & Lin, P.C., Syosset, NY (Hans H. Augustin of counsel), for appellant.

Lester Korinman Kamran Masini, P.C., Garden City, NY (Gabriel R. Korinman of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Conrad D. Singer, J.), entered August 22, 2024. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 306-b for an extension of time to serve a second supplemental summons and second amended complaint, and granted that branch of the cross-motion of the defendant Dorothy Larrier which was pursuant to CPLR 306-b and 3211(a)(8) to dismiss the second amended complaint insofar as asserted against her.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In December 2006, Denise Brown and the defendant Dorothy Larrier executed a note in favor of the plaintiff's predecessor in interest, Household Finance Realty Corporation of New York (hereinafter Household), which was secured by a mortgage executed by Brown encumbering certain real property located in Westbury. In October 2010, Household commenced this action against Brown, among others, to foreclose the mortgage. Brown failed to appear or answer the complaint. The Supreme Court issued an order of reference and subsequently issued a judgment of foreclosure and sale in October 2013. In August 2015, the subject property was sold to Household.

In the interim, in 2011, apparently unbeknownst to Household, Brown had died. In November 2017, the Supreme Court granted Household's unopposed motion, inter alia, to vacate the foreclosure sale and for leave to amend the complaint, and directed Household to settle an order on notice in the proper form with a copy of the supplemental summons. Household filed and served the supplemental summons and amended complaint, among other things, adding Larrier as a defendant, but failed to settle the order on notice as directed by the court. In 2018, Larrier and Brown's heir at law, Jarvis T. Brown, interposed separate answers to the amended complaint.

In January 2023, Household again moved, inter alia, to vacate the foreclosure sale, the judgment of foreclosure and sale, and the order of reference, as well as for leave to file and serve a second supplemental summons and second amended complaint and to substitute the plaintiff for Household. In an order dated March 15, 2023, the Supreme Court, among other things, granted the [*2]plaintiff's motion (hereinafter the 2023 order).

On October 19, 2023, the plaintiff filed the second supplemental summons and second amended complaint. On October 27, 2023, Larrier filed a notice of rejection of the supplemental pleadings on the ground that the plaintiff failed to timely serve Larrier in the manner directed by the 2023 order. In May 2024, the plaintiff moved, inter alia, pursuant to CPLR 306-b for an extension of time to serve the second supplemental summons and second amended complaint. Larrier opposed the motion and cross-moved, among other things, pursuant to CPLR 306-b and 3211(a)(8) to dismiss the second amended complaint insofar as asserted against her. In an order entered August 22, 2024, the Supreme Court, inter alia, denied that branch of the plaintiff's motion and granted that branch of Larrier's cross-motion. The plaintiff appeals.

"Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice" (State of New York Mtge. Agency v Braun, 182 AD3d 63, 66). "'Good cause' and 'interest of justice' are two separate and independent statutory standards" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31; see BAC Home Loans Servicing, L.P. v Herbst, 180 AD3d 980, 981). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Bumpus v New York City Tr. Auth., 66 AD3d at 31; see LaSalle Bank, NA v Ferrari, 210 AD3d 976, 977). Here, the plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effectuate proper service within 120 days (see LaSalle Bank, NA v Ferrari, 210 AD3d at 977; State of New York Mtge. Agency v Braun, 182 AD3d at 67).

Where, as here, the plaintiff fails to establish good cause, "courts must consider the 'interest of justice' standard of CPLR 306-b" (Bumpus v New York City Tr. Auth., 66 AD3d at 32; see LaSalle Bank, NA v Ferrari, 210 AD3d at 978). "Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105; see LaSalle Bank, NA v Ferrari, 210 AD3d at 978). "However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see LaSalle Bank, NA v Ferrari, 210 AD3d at 978).

Contrary to the plaintiff's contention, it failed to demonstrate that an extension of time to effectuate service was warranted in the interest of justice. The plaintiff failed to serve Larrier with the second supplemental summons and second amended complaint in the time and manner directed by the terms of the 2023 order. Moreover, the plaintiff waited until May 2024, approximately 7 months after being served with Larrier's notice of rejection and approximately 10 months after the plaintiff's time to serve the supplemental pleadings had expired, to move for an extension of time to serve Larrier and the other defendants (see LaSalle Bank, NA v Ferrari, 210 AD3d at 978; Wells Fargo Bank, N.A. v Fameux, 201 AD3d 1012, 1014). "Although the statute of limitations had expired by the time the plaintiff moved for an extension of time, 'a factor that usually would weigh in the plaintiff's favor,' the lengthy delay in this action was attributable to an 'overall extreme lack of diligence' on the part of the plaintiff" (LaSalle Bank, NA v Ferrari, 210 AD3d at 978, quoting US Bank N.A. v Fink, 206 AD3d 858, 861).

Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 306-b for an extension of time to serve the second supplemental summons and second amended complaint and granted that branch of Larrier's cross-motion which was pursuant to CPLR 306-b and 3211(a)(8) to dismiss the second amended complaint insofar as asserted against her.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court