Wei-Hong M. Cheng v. Cheng

Wei-Hong M. Cheng v Cheng 2025 NY Slip Op 30124(U) January 13, 2025 Supreme Court, New York County Docket Number: Index No. 161634/2023 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 01/14/2025 02:58 PM INDEX NO. 161634/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -------------------X INDEX NO. 161634/2023 WEI-HONG M. CHENG, MOTION DATE 12/12/2024 Plaintiff, MOTION SEQ. NO. 004 -v- DECISION + ORDER ON .

RAYMOND CHENG, SERENA YAN, MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 51, 52, 53 were read on this motion to/for AMEND CAPTION/PLEADINGS APPEARANCES: Law Office of Allison M. Furman, New York, NY (Allison M.

Furman, Esq., of counsel) for plaintiff.

Anderson and Associates Law, P.C., New York, NY (Yen-Yi Anderson, Esq., of counsel) for defendant-movant Serena Yan.

HON. EMILY MORALES-MINERVA: In this action for repayment of a loan; the court (S. Adams, J.S.C.), granted plaintiff WEI-HONG M. CHENG leave to amend the complaint to include a cause of action for conversion against defendant-movant SERENA YAN (see NY St Cts Elec Filing [NYSCEF] Index No. 161634/2023, Doc. No. 46., Decision and Order, dated Oct. 28, 2024). In the decretal paragraph, the same court ordered that "the Amended Complaint . . . shall be deemed served on defendants upon service of a copy of th[at] order with notice of entry thereof, and [that] defendant shall 161634/2023 CHENG, WEI-HONG M. vs. CHENG, RAYMOND ET AL Page 1 of4 Motion No. 004

1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 01/14/2025 02:58 PM INDEX NO. 161634/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/14/2025 serve an answer to the Amended Complaint within 30 days of said service" (id. at 2} .

Thereafter, defendant-movant Yan filed the instant motion, dated December 11 1 2024, for an order, pursuant to CPLR 3025 (b}, granting her permission to file an amended answer.

Plaintiff opposes the motion, arguing that defendant-movant's motion is untimely, and that defendant-movant failed to seek an extension of the deadline based on good cause (see CPLR 2004 [governing extensions of time generally]; see also NYSCEF, Doc.

52, affirmation in opposition, dated Dec. 30, 2024, at 4 and 5}.

In the alternative, plaintiff argues that defendant-movant failed to comply with the requisites of CPLR 3025 (b}, 1 as (l} Yan did not include an affidavit of merit with her motion, and (2) Yan did not include a proposed amended or supplemental pleading, showing the changes made to the initial answer (see NYSCEF Doc. 52, at 5-7}.

Preliminarily, the Court finds that this motion is timely.

The decision and order (S. Adams, J.S.C.}, dated October 28, 2024, directed that defendants file an answer to the amended complaint within 30 days of plaintiff's service of that decision

FILED: NEW YORK COUNTY CLERK 01/14/2025 02:58 PM INDEX NO. 161634/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/14/2025 and order with notice of entry. However, no proof exists in the record that plaintiff served defendant-movant with said order and notice of entry.

The document entitled "Notice of Entry" addressed to, among others, counsel for defendant-movant is insufficient, on its own, to establish such service (see NYSCEF Doc. 47, Notice of Entry, .dated November 01, 2024}. The notice does not include a corresponding affidavit or affirmation that plaintiff mailed or otherwise delivered it.

Moving next to the merits of the application, the court finds that both parties misplace their reliance on CPLR 3025 (b) in debating if this court should grant defendant-movant leave to file an amended answer. No leave is required as the court (S. Adams, J.S.C.} explicitly "ORDERED . . . defendants "shall serve an answer to the Amended Complaint within 30 days of [service of that court's decision and order with notice of entry]" (see NYSCEF, Doc. 45, at 2 [emphasis added]}.

CPLR 3025 (d} is consistent with said court's order and is most applicable to the procedural posture of this case. Rule 3025 (d) plainly states: "Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading [here, plaintiff's amended complaint] if an answer or reply is required to the pleading being amended or supplemented" (CPLR 3025 [d]).

161634/2023 CHENG, WEI-HONG M. vs. CHENG, RAYMOND ET AL Page3 of4 Motion No. 004

Accordingly, it is ORDERED that defendant SERENA YAN's motion· (Seq. no. 004} is DENIED as it unnecessarily seeks leave to file an amended answer; it is further ORDERED that defendant SERENA YAN's amended answer, dated January 08, 2025, is deemed filed; and it is further ORDERED that defendant SERENA YAN shall serve plaintiff WEI-HONG M. CHENG and defendant RAYMOND CHENG with the amended answer, by mail, on or before January 17, 2025, and file proof of such service with the Clerk of the court; and it is further ORDERED that defendant SERENA YAN shall serve this order with notice of entry on plaintiff WEI-HONG M. CHENG and defendant RAYMOND CHENG within ten days of notice of entry and shall file proof of such service with the Clerk of the court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

1/13/2025 DATE ~~~L-\l.,~uJ EMILY t.10RALES-MINERVA, J.S,C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

161634/2023 CHENG, WEI-HONG M. vs. CHENG, RAYMOND ET AL Page4 of4 Motion No. 004