                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519349
________________________________

THE BANK OF NEW YORK MELLON,
   Formerly Known as THE BANK
   OF NEW YORK, as Successor-in-
   Interest to JPMORGAN CHASE
   BANK, NATIONAL ASSOCIATION
   Formerly Known as JPMORGAN
   CHASE BANK, as Trustee for
   BEAR STEARNS ASSET BACKED
   SECURITIES TRUST 2003-3,
   ASSET BACKED CERTIFICATES,
   SERIES 2003-3,
                    Respondent,             MEMORANDUM AND ORDER
      v

LESLIE J. JINKS et al.,
                    Appellants,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   February 17, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      True Walsh & Sokoni, LLP, Ithaca (Khandikile M. Sokoni of
counsel), for appellants.

      Parker Ibrahim & Berg, LLC, New York City (Melinda Colon
Cox of counsel), for respondent.

                             __________
                              -2-                519349

Clark, J.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered April 21, 2014 in Tompkins County, which, among other
things, granted plaintiff's motion for an extension of time to
serve a reply to certain counterclaims.

      In November 1968, defendants Leslie J. Jinks and Marie
Patricia Jinks (hereinafter collectively referred to as
defendants) purchased a parcel of property located in the City of
Ithaca, Tompkins County. Approximately 30 years later,
defendants executed a note and mortgage on their property and,
after a series of successive assignments, plaintiff became the
holder of the note and mortgage. In August 2013, plaintiff
commenced the instant action alleging that defendants were in
default of their mortgage and seeking foreclosure of their home.
Defendants answered and asserted counterclaims alleging, among
other things, that plaintiff had unjustly modified their mortgage
payment requirements and had misled defendants by requiring them
to repeatedly complete onerous loan modification applications to
no avail. After failing to timely reply to defendants'
counterclaims, plaintiff moved for an extension of time to
answer. Defendants opposed said motion and cross-moved for a
default judgment against plaintiff. After a hearing, Supreme
Court granted plaintiff's motion and denied defendants' cross
motion. Defendants now appeal arguing that Supreme Court abused
its discretion in excusing plaintiff's default.

      Pursuant to CPLR 3012 (d), Supreme Court possesses the
discretion to extend a party's time to serve an answer "upon a
showing of reasonable excuse for delay or default" (see Watson v
Pollacchi, 32 AD3d 565, 565 [2006]; Amodeo v Gellert &
Quartararo, P.C., 26 AD3d 705, 706 [2006]; Aabel v Town of
Poughkeepsie, 301 AD2d 739, 739-740 [2003]). "Whether to grant a
party's application in this regard is a matter committed to
Supreme Court's sound discretion following due consideration of,
among other things, the length of the delay, whether such delay
was willful and whether the opposing party suffered prejudice as
a result" (Strumpf v Massachusetts Mut. Life Ins. Co., 125 AD3d
1239, 1240 [2015] [citation omitted]; see Dinstber v Allstate
Ins. Co., 75 AD3d 957, 957-958 [2010]).
                                 -3-                519349

      Here, apparently at some point after being served with
defendants' counterclaims, plaintiff's former counsel transferred
plaintiff's file to another firm, Bryan Cave LLP.1 After
defendants refused to grant plaintiff's request for a courtesy
extension of time to answer – which defendants were well within
their rights to do considering the time to answer had already
passed at the time the request was made – Bryan Cave sought a
court order, pursuant to CPLR 3012 (d), indicating that it had
been only recently retained and that it needed more time to
review the file. No further information concerning the
substitution of counsel or the transfer of the file was provided.

      Although plaintiff's motion papers lacked specific details
of the underlying circumstances, we discern no abuse of
discretion in excusing its default. Certainly, motions such as
this should not simply be granted for the asking, and our
preference is for more thorough motion practice. However, we do
not find the request for an extension by counsel, who was only
recently retained, to be per se unreasonable, even absent the
appreciated additional detail. Furthermore, in light of the
brief delay preceding plaintiff's motion, defendants' inability
to identify any specific prejudice that would result should the
extension be granted and the public policy in favor of resolving
matters on the merits, granting plaintiff's motion was an
appropriate exercise of discretion (see Strumpf v Massachusetts
Mut. Life Ins. Co., 125 AD3d at 1240; compare 333 Cherry LLC v
Northern Resorts, Inc., 66 AD3d 1176, 1177-1178 [2009]).
Accordingly, we affirm Supreme Court's order granting plaintiff's
motion for an extension of time within which to serve an answer
to defendants' counterclaims and denying defendants' cross motion
for a default judgment.

         McCarthy, J.P., Egan Jr. and Devine, JJ., concur.




     1
        No notice of this change in attorneys, either formal or
informal, appears in the record.
                        -4-                  519349

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
