Opinion
16-612261
12-26-2018
Daryl SNEDEKER, Plaintiff, v. Leigh CORTES-CARAHER and Caryn Ann Rassi, Defendants.
PLAINTIFF'S ATTORNEY: DELL & DEAN, PLLC, 1225 FRANKLIN AVE, SUITE 450, GARDEN CITY, NY 11530 DEFENDANTS: LEIGH CORTES-CARAHER, CARYN ANN RASSI
PLAINTIFF'S ATTORNEY: DELL & DEAN, PLLC, 1225 FRANKLIN AVE, SUITE 450, GARDEN CITY, NY 11530
DEFENDANTS: LEIGH CORTES-CARAHER, CARYN ANN RASSI
Sanford N. Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by plaintiff, dated June 22, 2018, and supporting papers; it is,
ORDERED that this motion (seq. # 001) by plaintiff for an order vacating plaintiff's default in failing timely to move for a default judgment against the defendants pursuant to CPLR 3215 and, upon the granting of such relief, directing the entry of a default judgment against and/or extending the plaintiff's time to move for entry of a default judgment against the defendants is granted to the extent indicated herein, and is otherwise denied; and it is further
ORDERED that the plaintiff shall promptly serve a copy of this Order, together with copies of the Supplemental Summons and Amended Complaint, upon all parties, or their attorneys if represented by counsel, by Certified Mail (return receipt requested), and shall thereafter promptly file the affidavits of service with the Suffolk County Clerk; and it is further
ORDERED that defendants' are directed to answer the amended complaint or otherwise appear in the action within forty-five days of service upon them of this order, together with the Supplemental Summons and Amended Complaint, failing which plaintiff may apply for entry of a default judgment against any such defaulting defendant pursuant to CPLR 3215 ; and it is further
ORDERED that failure to comply with the directives set forth in this Order may result in dismissal of this case, the striking of a party's pleadings, and/or any other appropriate sanction under the CPLR and/or Court Rules.
The original complaint in this action was filed, along with a summons, on August 8, 2016, seeking to recover damages for personal injuries allegedly sustained by the plaintiff in an automobile accident that occurred on September 17, 2013, when a motor vehicle owned and operated by defendant Leigh Cortes-Caraher struck a motor vehicle owned and operated by defendant Ann Rossi-Coryan, "who then struck the motor vehicle operated by Plaintiff Daryl Snedeker." Affidavits of service filed by plaintiff in support of the current motion show that service was timely effectuated upon both named defendants. Neither defendant answered or otherwise responded to the original complaint, and on March 31, 2017, plaintiff filed a supplemental summons and amended complaint, verified (as was the original complaint) by counsel, removing Ann Rossi-Coryan as a defendant and adding Caryn Ann Rassi (see CPLR § 1003 ). According to affidavits of service filed by plaintiff in support of the current motion, the supplemental summons and amended complaint were served personally upon Ms. Cortes-Caraher on April 17, 2017, and upon Ms. Rassi, pursuant to CPLR 308(2), on June 7, 2017. Proof of service upon Ms. Cortes-Caraher was filed electronically on April 24, 2017 and upon Ms. Rassi on June 12, 2017.
Plaintiff does not explain the apparent mistake that led to the action having been first commenced against "Ann Rossi-Coryan" rather than Caryn Ann Rassi.
Plaintiff now moves pursuant to CPLR 5015(a) for an order relieving her of her default in failing timely to move for a default judgment against the current defendants and, upon the granting of such relief, for entry of a default judgment against them pursuant to CPLR 3215 for their failure to answer the amended complaint or otherwise appear in this action. In the alternative, plaintiff asks, inter alia, that in the event the court declines to enter a default judgment, the defendants be directed to answer the amended complaint or appear in the action within thirty days of service upon them of the court's order determining the motion.
Plaintiff's motion is predicated, in the first instance, on her concession that her application for entry of a default judgment has been made beyond the time allowed by CPLR 3215(c) , which requires that such application be made within one year of the default, failing which "the court shall dismiss the complaint as abandoned, without costs, upon its own initiative or upon motion, unless sufficient cause is shown why the complaint should not be dismissed." (Id. , emphasis supplied.) Indeed, where application for entry of a default judgment has not been timely made, dismissal of the complaint is mandatory (see Giglio v. NTIMP, Inc ., 86 AD3d 301, 307-8 [2d Dept 2011] ("The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims ( CPLR 3215 [c] ) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned," id. , citing Butindaro v. Grinberg , 57 AD3d 932 [2d Dept 2008] ; DuBois v. Roslyn Natl. Mtge. Corp. , 52 AD3d 564, 565 [2d Dept 2008] ; County of Nassau v. Chmela, 45 AD3d 722 [2d Dept 2007] ; Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 AD3d 624 [2d Dept 2005] ), unless the plaintiff can demonstrate that the sole exception to mandatory dismissal articulated in CPLR 3015(c) applies (see Solano v. Castro , 72 AD3d 932, 933 [2d Dept 2010], citing Shinn v. City of New York , 65 AD3d 621, 622-623 [2d Dept 2009] ; Butindaro v. Grinberg, 57 AD3d 932 [2d Dept 2008] ; Staples v. Jeff Hunt Devs., Inc ., 56 AD3d 459 [2d Dept 2008] ; Mattera v. Capric , 54 AD3d 827, 828 [2d Dept 2008] ). See generally Opia v. Chukwu , 278 AD2d 394 [2d Dept 2000] ). To do so and avoid dismissal of the complaint as abandoned pursuant to CPLR 3015(c), a plaintiff who has failed timely to seek entry of default judgment is required, then, to show "both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious" ( Giglio v. NTIMP, Inc. , supra , 86 AD3d at 308 ; see Ryant v. Bullock , 77 AD3d 811, 811 [2d Dept 2010] ), as well as the "lack of prejudice to the other side" ( Sanchez v. Javind Apt. Corp . , 246 AD2d 353, 355 [1st Dept 1998] ; see generally Ibrahim v. Nablus Sweets Corp. , 161 AD3d 961, 963 [2d Dept 2018] ).
This is plainly the case if the time limit of CPLR 3015(c) is measured from the default of the first-served of the current defendants, Cortes-Caraher.
Here, as an excuse for the delay in timely moving for a default judgment, plaintiff's counsel proffers law office failure — specifically, "a miscommunication in plaintiff's counsel's office regarding the statuses of defendants currently in default." To demonstrate that he has meritorious causes of action against both defendants, plaintiff submits her own affidavit, in which, among other things, he verifies and "incorporates" the allegations of her amended complaint.
The verification annexed to the amended complaint, as filed, was executed by plaintiff's counsel, not by plaintiff personally (see Beltre v. Babu, 32 AD3d 722, 723 [1st Dept 2006] ["a complaint verified by counsel is purely hearsay, devoid of evidentiary value, and thus insufficient to support entry of a judgment pursuant to CPLR 3215"] ).
"Whether an excuse is reasonable is a determination committed to the sound discretion of the court" ( Costello v. Reilly , 36 AD3d 581, 581 [2d Dept 2007] ; Staples v. Jeff Hunt Developers, Inc. , 56 AD3d 459, 460 [2d Dept 2008] ). Although the excuse proffered here for the delay in seeking entry of a default judgment, "inadvertent error by ... counsel, is not compelling" ( LaValle v. Astoria Const. & Paving Corp. , 266 AD2d 28 [1st Dept 1999] ; see Opia v. Chukwu , supra ), "[u]nder CPLR 2005, law office failure is no longer a per se unreasonable excuse for a party's default or delay [and] [t]he extent of counsel's negligence must instead be weighed against the merits of the claim and the lack of prejudice to the other side" ( Sanchez v. Javind Apt. Corp. , 246 AD2d 353, 355, 667 N.Y.S.2d 708 [1st Dept 1998] ).
Although the bare-bones allegations of the amended complaint, which plaintiff, in her affidavit in support of the current motion, verifies and incorporates but does not amplify, may be adequate to state a cause of action, those allegations confound the merits assessment required for the relief he is now seeking, which is more probing. Thus, while the "proof required on an application for a default judgment is not as exacting as that required for a successful summary judgment motion," a plaintiff must establish "enough facts to enable a court to determine that a viable cause of action exists" by some "first hand confirmation" of the facts constituting the plaintiffs claims against the defaulting defendants (see Woodson v. Mendon Leasing Corp . , 100 N Y2d 62, 760 NYS2d 727 ; Cohen v. Schupler , 51 AD3d 706, 856 NYS2d 870 [2d Dept 2008] ). In particular, determining the viability of the claim asserted against defendant Caryn Ann Rassi - even while ignoring the apparent untimeliness of that claim (see CPLR 214 ) - is confounded both by the paucity of factual allegations and by the potential implications of those that have been made.
The general rule is that because the bar of "[t]he statute of limitations must be pleaded as an affirmative defense," it "cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment" ( Orix Fin. Services, Inc. v. Haynes , 56 AD3d 377 [1st Dept 2008] ). Conversely, although it is true that the " ‘rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit ( Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc. , 161 AD3d 1263, 1265-66 [3d Dept 2018] quoting NYAHSA Servs., Inc., Self—Ins. Trust v. People Care Inc ., 156 AD3d 99, 102 [3d Dept 2017] ["[a] claim is palpably insufficient or patently devoid of merit where it would be barred by the applicable statute of limitations "], emphasis supplied), here, however, neither of the original defendants appeared in response to service of the original summons and complaint, and the amendment that added Ms. Rassi as a party-defendant was made without leave of court (see CPLR 1003 ). Compare Crook v. E.I. du Pont de Nemours Co. , 181 AD2d 1039 [4th Dept 1992], affd 81 NY2d 807 [1993] ; Dauernheim v. Lendlease Cars, Inc. , 202 AD2d 624, 625 [2d Dept 1994]. Whether the evident untimeliness of the claim against Ms. Rassi is a factor that appropriately should be taken into account when assessing the merits of that claim for purposes of determining whether, in conjunction with the other factors that are to be considered in determining, pursuant to CPLR 3215(c), whether the claim should be dismissed - including the excuse proffered for the delay and the potential prejudice to the defendant - is an issue that can be equitably addressed on the facts presented here by affording additional time for defendants to appear and to assert such defenses as they deem appropriate.
Here, the amended complaint alleges, in substance, that plaintiff was injured in a chain collision in which the motor vehicle driven by defendant Cortes-Caraher struck defendant Rassi's vehicle, which then struck plaintiff's motor vehicle. No other details of the accident are provided or alleged, other than the street location where it allegedly occurred and the make and the issuing states and numbers of the license plates for the vehicles owned and operated by the defendants. While it is well settled that "a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" ( Kuris v. El Sol Contracting & Const. Corp., 116 AD3d 675, 675—76 [2d Dept 2014], citing Martin v. Cartledge, 102 AD3d 841 [2d Dept 2013] ; Kertesz v. Jason Transp. Corp. , 102 AD3d 658 [2d Dept 2013] ), a corollary of that principle is that where the collision is one of several "[i]n a chain-reaction collision, responsibility presumptively rests with the rearmost driver" ( Mustafaj v. Driscoll, 5 AD3d 138, 138—39[1st Dept 2004], citing Bendik v. Dybowski , 227 AD2d 228 [1st Dept 1996] ; Rue v. Stokes , 191 AD2d 245, 246 [1st Dept 1993] ). Thus, "[i]n a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle" ( Chuk Hwa Shin v. Correale , 142 AD3d 518, 519 [2d Dept 2016], citing Niosi v. Jones, 133 AD3d 578, 580 [2d Dept 2015] ; Fonteboa v. Nugget Cab Corp. , 123 AD3d 759, 760 [2d Dept 2014] ; Kuris v. El Sol Contr. & Constr. Corp. , 116 AD3d 675, 676, [2d Dept 2014] ). Plaintiff's submissions do not, however, supply sufficient factual information - including such basic allegations as whether the accident occurred at an intersection controlled by a traffic control device and whether plaintiff was stopped or stopping at the moment the accident occurred - to determine whether the merit of her claims, particularly with respect to defendant Rassi, when measured against the excuse proffered for failing earlier to move for entry of a default judgment, warrants both relieving him of that default and permitting him to obtain a default judgment against the defendants out of time.
In these circumstances, particularly as there has been no showing of prejudice to the defendants from the delay and as public policy strongly favors deciding claims on the merits, the more prudent and equitable course is to grant so much of the current motion as seeks relief from plaintiff's default in failing timely to move for entry of a default judgment, pursuant to CPLR 3215(c) ; to deny so much of plaintiff's motion as seeks entry of a default judgment against the defendants; and to direct the defendants to answer the amended complaint or otherwise appear in the action within forty-five days of service upon them of this order, together with the Supplemental Summons and Amended Complaint, failing which plaintiff may apply for entry of a default judgment against any such defaulting defendant pursuant to CPLR 3215 (see LaValle v. Astoria Const. & Paving Corp. , supra ).
This constitutes the decision and order of the Court.