Opinion
INDEX NO. 158048/2015
03-29-2019
OLIVER RIPLEY and JEISA RIPLEY, Plaintiffs, v. MARRIOTT HOTEL SERVICES, INC.,IAN SCHRAGER COMPANY, LLC,IAN SCHRAGER, EDITION MANAGEMENT LLC Defendant.
NYSCEF DOC. NO. 86 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 003
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 65, 66, 67, 68, 69, 71 were read on this motion to/for JUDGMENT - DEFAULT. Upon the foregoing documents, it is ordered that the motion is denied.
The history of within matter has been fully set forth in previous motions in this case. Thus, this Court will only set forth facts involving the instant motion for a default judgment by the plaintiffs against defendants Ian Schrager Company, LLC and Ian Schrager (the "Schrager defendants"). This matter was commenced on August 4, 2015. Doc. No. 1. The Schrager defendants responded with a pre-answer motion to dismiss. Doc. No. 4. That motion was denied by this Court in its decision and order dated May 22, 2017. Doc. No. 22. Subsequently, the Schrager defendants moved again for dismissal (Doc. No. 29) and that motion was denied on April 6, 2018. Doc. No. 49. Notice of Entry was filed by plaintiffs on April 12, 2018. Doc. No. 50.
Therefore, the Schrager defendants had until April 22, 2018 to timely file their answer pursuant to CPLR 3211(f). The instant motion for a default was filed on June 4, 2018. Plaintiffs argue that the Schrager defendants were properly served and failed to respond timely and, therefore, this motion should be granted and an inquest should be scheduled to assess damages.
The Schrager defendants filed their answer on June 5, 2018. Doc. No. 61. They filed their opposition to the instant motion of June 11, 2018. Doc. No. 63. In their opposition, they point out that they have been involved in the litigation from the beginning. Additionally, defendants' then-counsel, Diana R. Warshow, an associate of the law firm of Nesenoff & Miltenberg, LLP, represents that she immediately responded to plaintiffs' motion by requesting that they withdraw the same, first by e-mail (Doc. No. 65) and then, by immediately filing an answer. Additionally, counsel for the Schrager defendants appeared for a preliminary conference held on June 5, 2018, at which time counsel again asked the plaintiffs to withdraw their default motion. Doc. No. 66. Additionally, counsel points out that a deposition schedule was set at the conference for all parties, including the Schrager defendants. Counsel for the Schrager defendants argues that plaintiffs will not be prejudiced if their motion is denied, whereas the Schrager defendants would be extremely prejudiced if the motion were granted.
This Court finds, in its discretion, that the motion should be denied. See Guzetti v City of New York, 32 AD3d 234 (1st Dept 2006). Initially, plaintiffs were aware, prior to filing the instant motion, that the Schrager defendants had engaged in motion practice in this action. Doc. 29. Further, in response to the instant motion, the Schrager defendants immediately served their answer, containing potentially meritorious defenses, on June 5, 2018, the day after this motion was filed. Docs. 52 and 61. On June 5, 2018, plaintiffs' counsel also entered into a preliminary conference order with the Schrager defendants, at which the depositions of all parties were scheduled. Doc. 62. Given these facts, this Court cannot discern any prejudice which plaintiffs would suffer should this motion be denied, while granting the motion would leave the Schrager defendants with no defenses despite the fact that they have demonstrated a clear intent to participate in this action. See Spira v New York City Tr. Auth., 49 AD3d 478 (1st Dept 2008).
This Court notes that, on January 14, 2019, Nesenoff & Miltenberg, LLP moved to be relieved as counsel for the Schrager defendants, which motion was granted by this Court on January 29, 2019. Doc. No. 80. In granting that motion, this Court ordered a thirty day stay for the Schrager defendants to hire new counsel. Doc. No. 80. Notice of Entry on that order was filed on February 1, 2019. Doc. No. 82. A Notice of Appearance was filed on March 29, 2019 (Doc. No. 83), wherein Wade Clark Mulcahy LLP announced that it now represents the Schrager Defendants.
Given the strong public policy favoring the resolution of cases on their merits, this Court deems the answer of the Schrager defendants to be timely filed nunc pro tunc. See Marine v Berkowits Sch. of Electrolysis, Inc., 165 A.D. 3d 531, 532 (1st Dept 2018).
Although the Schrager defendants did not move to compel plaintiffs to accept their answer, this Court determines that the answer should be deemed accepted in the interest of judicial economy, so as to avoid further motion practice on this issue. See 420 West 206th St. Owners Corp. v Lorick, 2014 NY Slip Op 30348(U) (Sup Ct NY County 2014).
Therefore, in light of the foregoing, it is hereby:
ORDERED that the plaintiffs' motion for a default judgment against defendants Ian Schrager Company, LLC and Ian Schrager is denied; and it is further
ORDERED that the Answer served and filed by defendants, Ian Schrager Company, LLC and Ian Schrager on June 5, 2018, is hereby deemed timely filed, nunc pro tunc; and it is further
ORDERED that all parties are directed to appear for a compliance conference in Part 2, 80 Centre Street, Room 280, on April 30, 2019 at 2:15 p:m,; and it is further
ORDERED that this constitutes the decision and order of the court. 3/29/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.