Opinion
Index 810168/2017 804205/2019 800253/2019
03-08-2021
Joanna M. Friedel as Personal Representative of the Estate of Vernon L. Friedel, deceased and Individually, Plaintiffs v. Asbestos Corporation, Ltd. et al, Defendants, Sheryl Papiernik, Executrix of the Estate of William Santersero, deceased Plaintiffs, v. Asbestos Corporation, Ltd. et al Defendants, Carolyn L. Brown, as Administriatix of the Estate of William D. Brown, deceased, and Individually Plaintiffs, v. Asbestos Corporation, Ltd. et al Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. Deborah A. Chimes, J.S.C.
Plaintiff, Joanna M. Friedel, as Personal Representative of the Estate of Vernon L. Friedel, deceased and Individually, (Friedel) moves for a default judgment against defendant Hedman Resources LTD., (Hedman or defendant) (NYSCEF 009). Hedman opposed the motion. Hedman, by way of order to show cause, (NYSCEF 010), moves to vacate a prior order of this Court issued pursuant to CPLR 311(b) and dismiss the complaint on the grounds the Court lacks personal jurisdiction over Hedman, or in the alternative be granted permission to file, appear and defend the action. Additionally, Hedman brought a cross-motion (NYSCEF 011) to dismiss the complaint pursuant to CPLR 3215(c). Plaintiff opposed the cross-motion.
Plaintiff, Sheryl Papiernik, Executrix of the Estate of William Santersero, deceased, (Santersero) moves for default judgment against defendant Hedman Resources, LTD. (NYSCEF 003). Hedman opposed the motion. Hedman, by way of order to show cause. (NYSCEF 004), seeks to vacate a prior order of this Court issued pursuant to CPLR 311(b) and dismiss the complaint on the grounds the Court lacks personal jurisdiction over Hedman, or in the alternative be granted permission to file, appear and defend the action. Additionally, Hedman brought a cross-motion (NYSCEF 005) to dismiss the complaint pursuant to CPLR 3215(c). Plaintiff opposed the cross-motion.
Plaintiff, Carolyn L. Brown, as Administriatix of the Estate of William D. Brown, deceased, and Individually, (Brown) moves for default judgment against defendant Hedman Resources, LTD. (NYCEF 003). Hedman opposed the motion. Hedman, by way of order to show cause, (NYCEF 004), seeks to vacate a prior order of this Court issued pursuant to CPLR 311(b) and dismiss the complaint on the grounds the Court lacks personal jurisdiction of Hedman, or in the alternative be granted permission to file, appear and defend the action. Additionally, Hedman brought a cross-motion (NYSCEF 005) to dismiss the complaint pursuant to CPLR 3215(c). Plaintiff opposed the cross-motion.
All three plaintiffs claim on behalf of their respective decedent, that decedent was exposed to raw asbestos sold and supplied by Hedman to decedents' former employer, Durez, at Durez's North Tonawanda Plant. All three plaintiffs petitioned the court at varying times for an ex parte order seeking permission to an alternative method of service pursuant to CPLR 311(b). Plaintiff Friedel obtained the order on September 20, 2017 and served the summons and complaint on October 3, 2017 by leaving them with an "adult person who appeared to be in a position to give the documents to an Officer or Director of Hedman Resources Limited c/o Stephen A. Edell". Plaintiff Santasaro obtained the order on June 18, 2019 and served the summons and complaint on June 27, 2019, by leaving a copy with Stephen A. Edell. Plaintiff Brown obtained the order on July 2, 2019. Per the affidavit of service, the summons and complaint were served on June 21, 2019 by leaving a copy of the documents with Stephen A. Edell.
The summons and complaints in each case were also mailed to Stephen A. Edell at 2 Bloor Street E. Suite 3500, Hudsons Bay Centere, Toronto Ontario, Canada. They were mailed on September 22, 2017 in the Friedel matter, on June 19, 2019 in the Santersero matter and on July 2, 2019 in the Brown matter.
Hedman, a defunct Canadian Corporation, moves to vacate the orders granting permission to serve Hedman through alternative means, arguing plaintiffs failed to show other methods of service were impracticable as is necessary under CPLR 311(b). Hedman also cross-moved to dismiss the complaints arguing service was improper and therefore there is no personal jurisdiction over Hedman and the motion for default is untimely since it was brought more than one year from the default.
The Court will first address Hedman's motion to vacate the prior orders.
Defendant seeks to vacate the underlying orders which, pursuant to CPLR 311(b) allowed for service through alternative means. Defendant argued the plaintiffs failed to establish the impracticality element of the statute and therefore the prior orders should be vacated, and the complaint dismissed.
Though the three orders defendant challenges involve an ex parte motion under CPLR 311(b), similar language is used in CPLR 308(5), therefore the Court finds guidance in the language from Markoff v. South Nassau Community Hosp., 91 A.D.2d 1064, 1065, aff'd, 61 N.Y.2d 283, 473 N.Y.S.2d 766, where the court addressed the language of CPLR 308(5). Specifically, the court noted the language "authorizes expedient service 'in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section which provide for service by personal delivery, delivery and mailing, and affixing and mailing respectively. While it has been observed that the precondition of impracticability under CPLR 308 (subd 5) 'is not capable of easy definition' it 'should not be construed to require a showing that service under [subdivisions 1, 2 and 4] could not be made with 'due diligence'' The meaning of 'impracticable' will depend upon facts and circumstances of the particular case; however, a plaintiff seeking to effect expedient service must make some showing that other prescribed methods of service could not be made'" (id. at 1065, internal citations omitted).
Here, plaintiffs, when seeking to serve under CPLR 311(b), established through prior court proceedings, and court orders specific to the asbestos litigation against this defendant that there was a history of difficulty obtaining service through conventional ways. Based on the history of this defendant in those previous cases, plaintiffs provided to this Court "some showing" that the other methods of service would be impractical.
Therefore, this Court's prior order for alternative service was proper and Hedman's motion to vacate is denied
Moreover, even if the orders were improper and vacated, plaintiffs served defendant by mail, which the Fourth and Second Departments have found to be an acceptable form of service under the Hague Convention. (See, Fernandez v Univan Leasing, 15 A.D.3d 343; Cantara v Peeler, 267 A.D.2d 997).
Each plaintiff moves pursuant to CPLR 3215, for default judgement against Hedman on their respective cases. Hedman cross-moves for a dismissal under CPLR 3215 (c).
CPLR 3215(a) allows a plaintiff to seek a default judgment against a defendant who fails to appear, however under subdivision (c) "[i]f the plaintiff fails to take the proceedings for the entry of judgement within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned…unless sufficient cause is shown why the complaint should not be dismissed."
All three motions for default were made beyond one year. However, as explained by plaintiffs it was substantially due to the logistics of waiting for a Federal Court decision that could have significant impact on the three cases pending before this court. Plaintiffs did not "abandon" their case as if there was no contact with the Court, but instead kept this Court apprised of the developments and the reasoning why the default motions were not made within a year. Under the specific circumstances of this case, the Court finds there was sufficient cause for not seeking default judgement within the required time and denies the cross-motion to dismiss in its entirety.
However, given the interest shown by defendant at this juncture of the litigation, the good faith argument of there being a lack of jurisdiction and the "strong public policy in permitting parties to litigate on the merits" (Meyer v Rose, 160 A.D.2d 565, citing to Scott v Allstate Ins. Co. 124 A.D.2d 481), plaintiffs' motion for default judgement is denied without prejudice. Plaintiffs may renew the default motion if Hedman fails to serve an answer to each complaint by March 31, 2021.
WHEREFORE, it is hereby
ORDERED the plaintiffs' motion for default judgement is denied without prejudice and may be renewed if defendant fails to serve an answer to each complaint by March 31, 2021; and it is further
ORDERED the defendant's motion to vacate is denied in its entirety; and it is further
ORDERED the defendant's cross-motion to dismiss is denied in its entirety.