Opinion
2017–01304 File Nos. 2013-2269/E, 2013-2269/D
08-28-2019
William F. SCHIMOLER, et al., Appellants, v. Phyllis NEWMAN, etc., et al., Respondents, et al., Defendants. (Action No. 1) Phyllis Newman, etc., Respondent, v. Sheila M. O'Neill, et al., Appellants. (Action No. 2)
Miller Law Offices, PLLC, Lawrence, N.Y. (Scott J. Farrell and Jeffrey H. Miller of counsel) for appellants.
Miller Law Offices, PLLC, Lawrence, N.Y. (Scott J. Farrell and Jeffrey H. Miller of counsel) for appellants.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is affirmed, without costs or disbursements.
Harry Kelber (hereinafter the decedent), at age 98, entered into a contract to sell his cooperative apartment to his neighbors William F. Schimoler and Sheila M. O'Neill (hereinafter together the appellants). The decedent died prior to the closing, and his estate refused to close. Thereafter, the appellants commenced an action (Action No. 1) in the Supreme Court, Kings County, against, among others, Phyllis Newman, as executor of the decedent's estate (hereinafter the estate), as well as Karli Kelber and Laura Kelber (hereinafter together the Kelbers), seeking, among other things, specific performance of the real estate contract. The estate commenced an action (Action No. 2) in the same court against the appellants, seeking a judgment declaring that the contract of sale was null, void, and invalid on the ground that the decedent was mentally incapacitated at the time he entered into the contract. In October 2014, the estate and the Kelbers made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint in Action No. 1 insofar as asserted against them. By consent order dated January 28, 2015, all but one branch of the pre-answer motion to dismiss were withdrawn, and the Supreme Court reserved decision on that remaining branch of the motion. In the same order, the court joined the two actions for purposes of discovery and trial. More than one year later, on March 23, 2016, the remaining branch of the pre-answer motion to dismiss was resolved by a consent order, inter alia, permitting the estate and the Kelbers to withdraw the motion entirely. That order, however, did not address that the estate and the Kelbers had not yet interposed an answer to the complaint in Action No. 1. The appellants served a copy of the order with notice of entry upon the estate and the Kelbers on April 13, 2016.
On April 26, 2016, the appellants moved for leave to enter a default judgment against the estate and the Kelbers in Action No. 1, and separately moved pursuant to CPLR 3216 to dismiss the complaint in Action No. 2. On April 27, 2016, the estate and the Kelbers moved to transfer the related actions to the Surrogate's Court. The Supreme Court granted that motion, explaining that "the claims and defenses of the parties affect the estate of decedent Harry Kelber, Mr. Kelber's mental competence to enter into a real estate contract and potentially the validity of his will." In July 2016, while the appellants' motions for leave to enter a default judgment in Action No. 1 and to dismiss the complaint in Action No. 2 were pending before the Surrogate's Court, the estate and the Kelbers interposed a late answer. In the order appealed from, the Surrogate's Court denied both of the appellants' motions, and permitted the estate and the Kelbers to file a late answer.
To demonstrate entitlement to a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the claim demonstrating a viable cause of action, and the opposing party's default in answering or appearing (see CPLR 3215[f] ; Vidal v. 452 Wyckoff Corp., 131 A.D.3d 600, 15 N.Y.S.3d 175 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 59, 970 N.Y.S.2d 260 ). "To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense" ( Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260 ; see Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 753, 941 N.Y.S.2d 679 ). "Whether a proffered excuse is ‘reasonable’ is a ‘sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’ " ( Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260, quoting Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876–877, 800 N.Y.S.2d 613 ).
Here, the appellants satisfied their CPLR 3215 burden of proving service of process, the facts constituting the claim, and the default of the estate and the Kelbers in answering the complaint within 10 days of being served with, inter alia, a copy of the consent order withdrawing their pre-answer motion to dismiss (see CPLR 3211[f] ; 3215; Weber v. Peller, 82 A.D.3d 1331, 1332, 918 N.Y.S.2d 241 ; ABS 1200, LLC v. Kudriashova, 60 A.D.3d 1164, 1165, 874 N.Y.S.2d 336 ). However, considering the appropriate factors and the strong public policy in favor of resolving cases on the merits, the Surrogate's Court providently exercised its discretion in denying the appellants' motion for leave to enter a default judgment against the estate and the Kelbers, and permitting them to file a late answer.
The Surrogate's Court also providently exercised its discretion in denying the appellants' motion pursuant to CPLR 3216 to dismiss the complaint in Action No. 2. CPLR 3216 is "extremely forgiving" ( Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ) in that it " ‘never requires, but merely authorizes, the [court] to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed’ " ( Altman v. Donnenfeld, 119 A.D.3d 828, 990 N.Y.S.2d 542, quoting Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568 ; see CPLR 3216[a], [e] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 504–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Vera v. New York El. & Elec. Corp., 150 A.D.3d 927, 927–928, 55 N.Y.S.3d 114 ). "While the statute prohibits the [court] from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action, ... such a dual showing is not strictly necessary to avoid dismissal of the action" ( Altman v. Donnenfeld, 119 A.D.3d at 828, 990 N.Y.S.2d 542 [citations omitted]; see Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 503–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Davis v. Goodsell, 6 A.D.3d at 383–384, 774 N.Y.S.2d 568 ).
Here, there is no evidence that the appellants were prejudiced by any delay caused by the estate, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the estate to decline to proceed with discovery, or otherwise abandon the declaratory judgment action. Under these circumstances, the Surrogate's Court providently exercised its discretion in excusing the estate's failure to meet the appellants' deadline for filing the note of issue (see Vera v. New York El. & Elec. Corp., 150 A.D.3d at 928, 55 N.Y.S.3d 114 ; Altman v. Donnenfeld, 119 A.D.3d at 828–829, 990 N.Y.S.2d 542 ; Gordon v. Ratner, 97 A.D.3d 634, 635, 948 N.Y.S.2d 627 ).
SCHEINKMAN, P.J., AUSTIN, HINDS–RADIX and BARROS, JJ., concur.