Opinion
2009-137 Q C.
Decided October 13, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered December 22, 2008. The order, insofar as appealed from, upon, in effect, granting plaintiff's motion for leave to reargue a prior motion, adhered to the prior determination which, inter alia, had denied plaintiff's motion for the entry of a default judgment.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
Plaintiff's amended complaint in the instant action asserted a cause of action for breach of contract, 20 causes of action for theft, 3 causes of action for slander and 17 causes of action for libel. Plaintiff sought to recover $25,000 for each cause of action. After serving the amended complaint, plaintiff moved to enter a default judgment based on defendant's alleged failure to serve and file an answer to the amended complaint, and defendant cross-moved to, inter alia, dismiss the complaint for lack of subject matter jurisdiction in that the amount sought exceeded the monetary jurisdictional limit of the court. By order entered July 12, 2007, the Civil Court denied plaintiff's motion for the entry of a default judgment and granted the branch of defendant's cross motion which sought to dismiss the complaint for lack of subject matter jurisdiction. On July 23, 2007, a judgment was entered in favor of defendant dismissing plaintiff's complaint and awarding defendant $90 in costs. Plaintiff appealed therefrom, and, by order dated July 10, 2008, this court reversed the judgment, vacated so much of the order entered July 12, 2007 as granted defendant's cross motion to dismiss the cause of action alleging breach of contract, the 3 causes of action alleging slander and the 20 causes of action alleging theft, and denied defendant's cross motion to dismiss as to said 24 causes of action ( 20 Misc 3d 138 [A], 2008 NY Slip Op 51564[U] [2008]). This court noted that plaintiff's application for entry of a default judgment had properly been denied since plaintiff had failed to present proof of valid service of the amended complaint.
Thereafter, plaintiff moved for the entry of a default judgment on the ground that defendant had failed to answer his amended complaint and interrogatories. Defendant cross-moved to, inter alia, extend his time to answer plaintiff's amended complaint, to strike plaintiff's interrogatories, and for an award of costs and sanctions for plaintiff's frivolous motion. By order entered September 25, 2008, the Civil Court denied plaintiff's motion for the entry of a default judgment and granted those branches of defendant's cross motion seeking an extension of time to answer the amended complaint and to strike plaintiff's interrogatories as premature and improper. Plaintiff then moved for leave to reargue, and defendant submitted opposition thereto. By order entered December 22, 2008, the Civil Court, in effect, granted leave to reargue and, upon reargument, adhered to its order entered September 25, 2008. The instant appeal by plaintiff ensued.
Defendant's cross motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (2) extended defendant's time to answer the amended complaint until 10 days after service of the court's order disposing of the motion together with notice of entry ( see CPLR 3211 [f]; STS Mgt. Dev. v New York State Dept. of Taxation Fin., 254 AD2d 409). As noted above, defendant's cross motion to dismiss the complaint was initially granted by the Civil Court, and a judgment was entered dismissing the amended complaint. Thereafter, by order dated July 10, 2008, this court reversed the Civil Court's judgment and vacated so much of the order as dismissed certain causes of action set forth in the amended complaint. As a result, defendant had 10 days to answer the amended complaint from the date on which he was served with this court's order together with notice of entry. Since plaintiff failed to establish that he had served this court's order together with notice of entry upon defendant, defendant's time to answer the amended complaint did not begin to run ( see CPLR 3211 [f]).
Furthermore, contrary to plaintiff's contention that defendant defaulted by not answering plaintiff's interrogatories, since, as noted above, defendant's time to answer had not yet expired, the service of the interrogatories by plaintiff, without a court order, was premature ( see CPLR 3132). Therefore, plaintiff failed to demonstrate that any matters of fact or law were overlooked or misapprehended by the Civil Court (CPLR 2221 [d] [2]), and, thus, the order entered December 22, 2008 is affirmed.
While defendant asks that this court impose sanctions upon plaintiff on the ground that his appeal constituted "frivolous conduct" (Rules of the Chief Administrator [22 NYCRR] § 130.1-1), we decline such request.
Pesce, P.J., Golia and Steinhardt, JJ., concur.