Opinion
2018-06282 Index No. 505552/17
10-02-2019
Ida GLANZ, Appellant, v. PARKWAY KOSHER CATERERS, et al., Respondents.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant. Farber Brocks & Zane LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for respondents.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.
Farber Brocks & Zane LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for respondents.
REINALDO E. RIVERA, J.P. SYLVIA O. HINDS–RADIX HECTOR D. LASALLE ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Andrew Borrok, J.), dated April 30, 2018. The order denied the plaintiff's motion for leave to enter a default judgment against the defendants on the issue of liability upon their failure to appear or answer and to set the matter down for an inquest on the issue of damages, and granted that branch of the defendants' cross motion which was to compel the plaintiff to accept their late answer.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the plaintiff's motion for leave to enter a default judgment against the defendants on the issue of liability and to set the matter down for an inquest on the issue of damages is granted, that branch of the defendants' cross motion which was to compel the plaintiff to accept their late answer is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages.
On February 10, 2017, Ida Glanz allegedly was injured when she tripped and fell in a catering hall operated, managed, and controlled by the defendants. On March 20, 2017, Glanz commenced this personal injury action using the first name Ruchie, which is her Yiddish first name. On March 22, 2017, she filed a supplemental summons and amended complaint using her legal first name, Ida. The sole purpose of the amendment, with respect to the plaintiff, was to correct the first name of the plaintiff. On April 14, 2017, the defendant Parkway Glatt Kosher Caterers, Inc., was served with the supplemental summons and amended complaint by service upon the Secretary of State. On May 11, 2017, the defendant Parkway Kosher Caterers was served with the supplemental summons and amended complaint.
On November 22, 2017, Glanz moved for leave to enter a default judgment against the defendants on the issue of liability upon their failure to appear or answer and to set the matter down for an inquest on the issue of damages. The defendants opposed Glanz's motion and filed a late answer to the amended complaint on December 13, 2017. On March 9, 2018, the defendants cross-moved, inter alia, to compel Glanz to accept their late answer. In the order appealed from, the Supreme Court denied Glanz's motion and granted that branch of the defendants' cross motion which was to compel Glanz to accept their late answer. Glanz appeals.
Contrary to the defendants' contention, the amendment of the complaint and caption did not constitute an improper substitution of a different plaintiff. Rather, the complaint and caption were amended to reflect Glanz's legal name. " ‘[W]here the right party plaintiff is in court but under a defective name or title as party plaintiff, ... an amendment correcting the title is permissible’ " ( Bessa v. Anflo Indus., Inc., 148 A.D.3d 974, 977, 51 N.Y.S.3d 102, quoting Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77, 80, 345 N.Y.S.2d 721 ; see HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862, 27 N.Y.S.3d 192 ; Tilden Dev. Corp. v. Nicaj, 49 A.D.3d 629, 630, 854 N.Y.S.2d 418 ; Cutting Edge v. Santora, 4 A.D.3d 867, 867–868, 771 N.Y.S.2d 462 ; First Wis. Trust Co. v. Hakimian, 237 A.D.2d 249, 249, 654 N.Y.S.2d 808 ). " CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced" ( U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908, 910, 971 N.Y.S.2d 336 ), and CPLR 5019(a) gives trial and appellate courts the discretion to cure mistakes, defects, and irregularities that do not affect substantial rights of parties (see U.S. Bank N.A. v. Eaddy, 109 A.D.3d at 910, 971 N.Y.S.2d 336 ; HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d at 862, 27 N.Y.S.3d 192 ). The defendants have not demonstrated any prejudice from the amendment. Furthermore, Glanz did not waive the issue of the defendants' default (see Hosten v. Oladapo, 44 A.D.3d 1006, 1007, 844 N.Y.S.2d 417 ; Katz v. Perl, 22 A.D.3d 806, 807, 803 N.Y.S.2d 696 ).
In order to be entitled to enter a default judgment upon a defendant's failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant's default in appearing or answering (see CPLR 3215[f] ; L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 729, 90 N.Y.S.3d 92 ; Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194, 55 N.Y.S.3d 400 ; Deutsche Bank Natl. Trust Co. v. Kuldip, 136 A.D.3d 969, 970, 25 N.Y.S.3d 653 ). Here, Glanz satisfied these requirements (see Bank of Am., N.A. v. Agarwal, 150 A.D.3d 651, 652, 57 N.Y.S.3d 153 ; U.S. Bank, N.A. v. Razon, 115 A.D.3d 739, 740, 981 N.Y.S.2d 571 ).
" ‘In order to avoid the entry of a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action’ " ( Yuxi Li v. Caruso, 161 A.D.3d 1132, 1133, 77 N.Y.S.3d 685, quoting Jong Gwon Kim v. Strippoli, 144 A.D.3d 982, 983, 42 N.Y.S.3d 245 ; see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ). A defendant seeking to vacate a default in appearing or answering is required to make the same showing (see CPLR 5015[a][1] ; Jian Hua Tan v. AB Capstone Dev., LLC, 163 A.D.3d 937, 937–938, 83 N.Y.S.3d 86 ; LaSalle Bank N.A. v. Calle, 153 A.D.3d 801, 802, 61 N.Y.S.3d 104 ; Wells Fargo Bank v. Malave, 107 A.D.3d 880, 880–881, 968 N.Y.S.2d 127 ). The determination of what constitutes a reasonable excuse lies within the discretion of the trial court (see Jian Hua Tan v. AB Capstone Dev., LLC, 163 A.D.3d at 938, 83 N.Y.S.3d 86 ; Gershman v. Ahmad, 131 A.D.3d 1104, 1105, 16 N.Y.S.3d 836 ; Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260 ).
Here, the defendants failed to demonstrate a reasonable excuse for their default. In this regard, "a general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient" ( Spitzer v. Landau, 104 A.D.3d 936, 936, 961 N.Y.S.2d 554 ; see Blythe v. BJ's Wholesale Club, Inc., 123 A.D.3d 1073, 1074, 997 N.Y.S.2d 635 ; Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227 ; Jackson v. Professional Transp. Corp., 81 A.D.3d 602, 603, 916 N.Y.S.2d 159 ). The affidavit of the defendants' manager indicating delay by either their insurance broker or insurance carrier was conclusory and unsubstantiated. The absence of a reasonable excuse for the defendants' default renders it unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see HSBC Bank USA, N.A. v. Smart, 155 A.D.3d 843, 843, 63 N.Y.S.3d 700 ; US Bank N.A. v. Smith, 132 A.D.3d 848, 851, 19 N.Y.S.3d 62 ).
Accordingly, the Supreme Court improvidently exercised its discretion in denying Glanz's motion for leave to enter a default judgment against the defendants on the issue of liability and to set the matter down for an inquest on the issue of damages, and in granting that branch of the defendants' cross motion which was to compel Glanz to accept their late answer. We remit the matter to the Supreme Court, Kings County, for an inquest on the issue of damages.
RIVERA, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.