Opinion
161142/2017
03-05-2021
John RIORDAN and Kirk Bigelow, Plaintiffs, v. Alberto GARCES, Individually; Alberto Garces, as President of American Federation of Government Employees, AFL-CIO, Local 3369 SSA; and American Federation of Government Employees, AFL-CIO, Defendants.
For plaintiffs: Justin Mercer, Esq., Lewis & Lin LLP, (718) 243-9323 For defendant: Laine Alida Armstrong, Esq., Arthur Z. Schwartz, Esq., Advocates for Justice Chartered Attorneys, (212) 285-1400 x 107
For plaintiffs: Justin Mercer, Esq., Lewis & Lin LLP, (718) 243-9323
For defendant: Laine Alida Armstrong, Esq., Arthur Z. Schwartz, Esq., Advocates for Justice Chartered Attorneys, (212) 285-1400 x 107
Barbara Jaffe, J.
The following e-filed documents, listed by NYSCEF document num012(d) ber (Motion 011) 143-175, 179-193 were read on this motion to compel and dismiss.
Defendant Local 3369 (Local) moves pursuant to CPLR 3012(d) for an order compelling plaintiffs to accept its answer, and pursuant to CPLR 3211(a)(7) for an order dismissing the fifth and sixth causes of action in the first amended complaint. Plaintiffs oppose and cross-move for a default judgment.
I. BACKGROUND
Many of the facts underlying these motions are set forth in my decision and order dated December 16, 2020, wherein I denied Local's motion to dismiss, brought pursuant to CPLR 3211(a)(8), finding that plaintiffs reasonably believed that an attorney had apparent authority to accept, and had in fact accepted, service of the first amended complaint on behalf of Local on May 2, 2019. (NYSCEF 134). It is undisputed that Local filed its answer on December 16, 2020.
II. MOTION TO COMPEL
Pursuant to CPLR 3012(d), "[u]pon the application of a party, the court may ... compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay ..." The factors to be considered in ruling on such an application "include the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense." ( Emigrant Bank v Rosabianca , 156 AD3d 468, 472-473 [1st Dept 2017] ). In Bey v Sobro Local Dev. Corp ., the Court held that defendants’ "de minimis delay, combined with its reasonable excuse of having lost track of filing deadlines, the absence of any indication that the delay was willful or that it was prejudicial to [the plaintiff], the merits of [the defendant's] defense, and the State's policy of resolving cases on the merits, supported the relief" sought pursuant to CPLR 3012(d). ( 177 AD3d 448, 449 [1st Dept 2019] ).
Here, after the attorney's acceptance of service, the parties engaged in correspondence whereby another attorney obtained, on Local's behalf, plaintiffs’ agreements to extend the time for Local to file its answer to the first amended complaint. According to plaintiffs, the last such extension was granted to July 10, 2019. (NYSCEF 179).
According to Local, given their position, advanced in its first motion to dismiss, that it had not been served with the first amended complaint, it reasonably believed, until the December 16, 2020 decision, that an answer was not due, and it moreover observes that as soon as the decision was rendered, it filed its answer. Alternatively, Local asserts that plaintiffs had agreed to dismiss the two causes of action against it upon receipt of affidavits from Local's president and from the attorney representing Local supporting the first amended complaint as against defendant Garces.
In support thereof, Local relies on correspondence between plaintiffs’ counsel and the attorney. On June 11, 2019, plaintiffs’ counsel emailed the attorney that while plaintiffs believe that the case against Local could be resolved, they would not dismiss as against Local without cooperation from Local's president. (NYSCEF 159). Then, by email dated June 21, 2019, plaintiffs’ counsel undertook to draft affidavits whereby Local's president and the attorney would attest to facts favoring Garces, indicating his intent to send the draft affidavits to Local by June 26 or so with the goal of resolving "any issues" before the aforementioned July 10, 2019 deadline for the answer. (NYSCEF 160). Counsel did not provide Local with the drafts until July 9, 2019, and on July 12, after acknowledging that Local's response to the first amended complaint was past due, suggested discussing it. (NYSCEF 161). On July 14, 2019, the attorney provided his edits to plaintiffs’ counsel, and on July 15, Local's president sent his edits. (NYSCEF 162, 163).
By email to Local's president, copied to the attorney and dated November 22, 2019, plaintiffs’ attorney wrote:
I appreciate your help thus far, but for the information in your affidavit to be useful to us, it would need to be notarized. We have waited many months for this affidavit in an effort to avoid continuing the litigation against the Local, or otherwise deposing or subpoenaing you. Accordingly, the very least amount of time that we require would be for you to have the affidavit notarized.
(NYSCEF 168).
The affidavits were fully executed by January 3, 2020. (NYSCEF 182, 183). Local's obligation to answer the first amended complaint was not, however, raised until the attorney did so in his email to plaintiff's counsel dated June 10, 2020. (NYSCEF 172).
Local thus argues that in light of this correspondence, it reasonably anticipated that once the affidavits were executed, the action would be dismissed as against it, and thus, a response to the first amended complaint was not required even without further extensions. (NYSCEF 150).
While plaintiffs deny any agreement to dismiss the action as against Local, they provide an insufficient explanation of this correspondence, arguing that the affidavits were sought solely to preserve testimony. Even so, the reason for seeking them does not disprove the existence of an agreement. Plaintiffs also contend that they are prejudiced by Local's delay in answering "given the Local's misguided belief that it is entitled to make a successive 3211(a) motion[s] after it answered." (NYSCEF 179).
The November 22 email, along with the other correspondence, demonstrates the reasonableness of Local's belief that the action would ultimately be dismissed as to it upon receipt of the notarized affidavit from the president ("to avoid continuing the litigation against the Local"). Consequently, Local provides a reasonable excuse for believing that plaintiffs did not expect it to file an answer. These circumstances also reflect that Local's delay, while not inadvertent, defeats no interest of plaintiffs, especially as Local filed its answer less than a month later. ( See e.g. HSBC USA v Lugo , 127 AD3d 502, 503 [1st Dept 2015], lv dismissed 33 NY3d 1039 [2019] [delay in filing answer not willful where defendants’ delay in filing answer attributable to settlement negotiations]).
Plaintiffs’ claim of prejudice fails, especially as Local's motion to dismiss cannot be considered ( supra , III.), and Local sufficiently demonstrates the merits of its defense, as it is difficult to understand how it may be held liable for the intentional tort of its former president or for an intentional tort committed on the premises. Moreover, plaintiffs’ apparent willingness to dismiss as against Local upon receipt of the affidavits reflects that they too may have harbored some doubt as to the validity of the claims against Local. And of course, there is a preference that cases be resolved on the merits.
III. MOTION TO DISMISS
At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted ...
( CPLR 3211[e] ).
Local's argument that its successive CPLR 3211(a)(7) motion is authorized by the provision in CPLR 3211(e) that permits such a motion to be made "at any time" not only fails to acknowledge that the motion may be made "at any subsequent time," but requires the exaltation of one portion of the statute at the expense of another, in violation of the rule of statutory construction that "[a]ll parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof." (McKinney's Cons Laws of NY, Book 1, Statutes § 98).
Harmonization of the two portions of CPLR 3211(e) is accomplished by construing CPLR 3211(e) as a non-waiver provision by which a CPLR 3211(a)(7) motion is not waived even if brought after service of a responsive pleading is required. Such an interpretation is consonant with the great weight of authority whereby courts have adhered to the rule against successive CPLR 3211(a) motions. ( See e.g. McLearn v Cowan & Co. , 60 NY2d 686, 689 [1983] [although failure to state cause of action not lost by failure to include in motion under CPLR 3211(e), it may not be raised in another motion under that section of which statute permits only one but may be later raised in another form]; Bailey v Peerstate Equity Fund, LP , 126 AD3d 738, 739 [2d Dept 2015] [rule bars both repetitive motions to dismiss pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) based on alternative grounds]; Ramos v City of New York , 51 AD3d 754, 755 [2d Dept 2008] [although motion based on ground that complaint fails to state cause of action may be raised at any time, party may not file second motion pursuant to CPLR 3211 based on that ground, but must raise ground in another form]; accord Mark C. Dillon, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211 ).
Local cites Held v Kaufman , in which the Court observed that "the purpose of CPLR 3211 (e) is to ‘prevent the delay before answer that could result from a series of motions’ " ( 91 NY2d 425, 430 [1998] ). According to Local, the filing of its second CPLR 3211(a) motion after it answered did nothing to frustrate that statutory purpose, and thus, such a circumstance is not governed by the rule against successive motions. Even so, the Held Court did not address the circumstance in issue here. Rather, it decided whether the raising of additional defenses for the first time in a defendant's reply papers is barred by the successive motion rule and found that it is not. Moreover, the statute has been referenced as not only preventing delay, but as "spar[ing] the court's motion calendars the burden of a CPLR 3211 motion more than once in the same case." (Dillon, Supp Practice Commentaries, supra , C3211:51). And, while statutes are to be construed so as to advance legislative intent, Local does not demonstrate that the Legislature intended to permit a successive CPLR 3211(a) motion even if brought after service of a responsive pleading is required.
Although the Court in Bernstein v 1995 Assocs. rejected the plaintiff's argument that defendant had improperly brought a second motion pursuant to CPLR 3211(a), observing that a motion pursuant to CPLR 3211(a)(7) may be brought "at any time" ( 217 AD2d 512, 515 [1st Dept 1995] ), the authority on which the Court relied, McLearn , stands for no such proposition ( see Dillon, Supp Practice Commentaries, supra [while it had once been held that a second motion may be made pursuant to CPLR 3211(a)(7), e.g., Higby Enterprises, Inc. v City of Utica, 54 Misc 2d 405 (Sup Ct, Oneida County 1967), affd 30 AD2d 1052 (4th Dept 1968), Court of Appeals held otherwise in McLearn ]), and in the other two decisions cited in Bernstein , there is no discussion of successive motions. Moreover, Bernstein has borne no apposite progeny. Consequently, in light of McLearn , supra , Bernstein does not bind me.
For all of these reasons, Local's motion to dismiss pursuant to CPLR 3211(a)(7) after the filing of its answer is precluded pursuant to the statutory prohibition of successive motions.
IV. CROSS MOTION FOR DEFAULT JUDGMENT
Given this result, plaintiffs’ cross motion for a default judgment against Local is denied.
V. CONCLUSION
Accordingly, it is hereby
ORDERED, that the motion is granted to the extent of compelling plaintiffs to accept the answer of defendant Local 3369, and is otherwise denied; it is further
ORDERED, that plaintiffs’ cross motion for a default judgment is denied; and it is further
ORDERED, that the parties either enter into a stipulation encompassing their next compliance conference on or before April 7, 2021, or appear for the conference in room 341, 60 Centre Street, New York, New York, on April 7, 2021 at 2:15 pm or virtually if necessary. The NOI is due by April 14, 2021.