theCPLRblog

5015; 3012; and a Sur-Reply

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR R. 5015 Relief from judgment or order

Garal Wholesalers, Ltd. v Raven Brands, Inc., 2011 NY Slip Op 02349 (App. Div., 2nd 2011)

A party seeking to vacate a default in appearing or answering and to serve a late answer must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Heidari v First Advance Funding Corp., 55 AD3d 669; Levi v Levi, 46 AD3d 519; 599 Ralph Ave. Dev., LLC. v 799 Sterling Inc., 34 AD3d 726; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 27 AD3d 708). The good-faith belief of the president of the defendant Raven Brands, Inc. (hereinafter Raven), that his telephone conversation with the plaintiff's attorney and his subsequent letters denying the allegations in the complaint were sufficient to answer the complaint did not constitute a sufficient excuse for the default, particularly since the plaintiff's attorney responded by letter stating that Raven was in default in answering the complaint (see Tucker v Rogers, 95 AD2d 960). Furthermore, Raven's erroneous assumptions regarding the validity of the action and the need to defend did not constitute reasonable excuses for its default in answering and for its almost four-month delay in appearing in this action (see Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823; Awad v Severino, 122 AD2d 242; Passalacqua v Banat, 103 AD2d 769). Moreover, the affidavit of Raven's president, which contained only conclusory assertions without any evidentiary support, was insufficient to establish a potentially meritorious defense to the action (see Kolajo v City of New York, 248 AD2d 512, 513; Peterson v Scandurra Trucking Co., 226 AD2d 691, 692; Lener v Club Med, 168 AD2d 433, 435).

Pena-Vazquez v Beharry, 2011 NY Slip Op 02462 (App. Div., 1st, 2011)

The court providently exercised its discretion in denying plaintiffs' motion and deeming defendants' answer timely served nunc pro tunc. Plaintiffs' acceptance of defendants' answer, without objection, constituted a waiver of the late service and default (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]). In any event, the settlement discussions between plaintiffs and defendants' insurer constitute a reasonable excuse for defendants' delay in answering (see CPLR 3012[d]; see also Finkelstein v East 65th St. Laundromat, 215 AD2d 178 [1995]). Contrary to plaintiffs' contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v Case Constr. Co., Inc., 63 AD3d 521 [2009]).

The court providently exercised its discretion in considering defendants' surreply. The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]).

I missed this case, but found it on JT's blog.

Ferdico v Zweig, 2011 NY Slip Op 02621 (App. Div., 2nd 2011)

The Supreme Court providently exercised its discretion in denying that branch of the cross motion of the defendants Brian Mullen and Marybeth Mullen (hereinafter together the Mullens) which was to vacate a judgment dated March 11, 2009, pursuant to CPLR 5015(a)(2). The Mullens failed to establish, inter alia, that the purportedly newly discovered evidence, a report of an alleged handwriting expert concluding that the alleged signature of Morris Zweig on a contract of sale dated July 15, 2004, that had been attached as an exhibit to the plaintiffs' complaint was a forgery, could not have been discovered earlier through the exercise of due diligence (see Sicurelli v Sicurelli, 73 AD3d 735; Vogelgesang v Vogelgesang, 71 AD3d 1132, 1133-1134; Sieger v Sieger, 51 AD3d 1004, 1005; Matter of State Farm Ins. Co. v Colangelo, 44 AD3d 868). The Supreme Court also properly denied that branch of the Mullens' cross motion which was to vacate the judgment dated March 11, 2009, pursuant to CPLR 5015(a)(3), as they failed to establish that the judgment was procured as a result of fraud, misrepresentation, or other improper conduct (see Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 928; Sicurelli v Sicurelli, 73 AD3d 735; Matter of Tellez, 56 AD3d 678).

The Supreme Court also properly denied that branch of the Mullens' cross motion which was to renew their motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, as they failed to set forth both "new facts not offered on the prior motion[s] that would change the prior determination" and a "reasonable justification for the failure to present such facts on the prior motion[s]" (CPLR 2221[e][2], [3]; see Bank of Am., N.A., USA v Friedman, 44 AD3d 696; Yarde v New York City Tr. Auth., 4 AD3d 352, 353; Johnson v Marquez, 2 AD3d 786, 788-789; Riccio v DePeralta, 274 AD2d 384). The Mullens failed to set forth a reasonable justification as to why they did not previously obtain the report of their alleged handwriting expert in time to submit it in support of their original cross motion or in opposition to the plaintiffs' original motion, given that the contract of sale analyzed by their alleged expert was attached as an exhibit to the complaint in the instant action.

CPLR § 3012; Judiciary Law § 470

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Judiciary Law § 470

Empire Healthchoice Assur., Inc. v Lester, 2011 NY Slip Op 01412 (App. Div., 1st 2011)

Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002]). Thus the court was correct in striking defendants' answer.

The court also properly granted defendants' cross motion pursuant to CPLR 3012(d) for an extension of time to answer (Nason v Fisher, 309 AD2d 526 [2003]). Plaintiff's contention that Judiciary Law § 470 barred the motion court from extending defendant's time to answer is incorrect, since the striking of a pleading under that statute is without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d at 339). Defendants' delay in serving a proper answer was short and the defect in the original answer was attributable to law office failure by defendants' original attorney. Plaintiff was not prejudiced by any delay because the original defective answer was timely served (see Gazes v Bennett, 70 AD3d 579 [2010]). Defendants were not required to demonstrate a meritorious defense in order to be granted relief under CPLR 3012(d) (see Nason, 309 AD2d at 526; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]; Mufalli v Ford Motor Co., 105 AD2d 642 [1984]).

One day late CPLR § 3012; § 2005

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)

Plaintiff served a summons and verified complaint on the Insurance Department on July 29, 2008 pursuant to Insurance Law § 1212. However, defendant allegedly did not receive them until August 21, 2008. Although defendant served an answer on August 28, 2008, plaintiff rejected it because it was not verified. On September 4, 2008 — one day after receiving plaintiff's letter of rejection — defendant served a second answer, virtually identical to the first but properly verified, which was rejected by plaintiff as untimely. Defendant then promptly moved to extend its time to answer and to compel plaintiff to accept late service thereof. Plaintiff cross-moved for a default judgment. Supreme Court granted defendant's motion — giving defendant 30 days to file, serve and file proof of service of the second answer — and denied plaintiff's cross motion. Plaintiff now appeals and we affirm. [*2]

Pursuant to CPLR 3012 (d), Supreme Court has the discretion to permit late service of an answer upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565, 565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a default is a discretionary, 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'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).

Here, contrary to plaintiff's assertion, we find that defendant proffered both a reasonable excuse for its delay in serving a verified answer and a sufficiently meritorious defense to the claims. Defendant proffered several reasons for its delay. First, defendant submitted evidence that it did not actually receive the complaint from the Insurance Department until one week before the time to answer expired and that an incorrect date of service on the transmittal sheet caused further delay in the complaint being referred to counsel. After unsuccessfully attempting to contact plaintiff to obtain an extension of time to serve an answer, defendant effected such service one day after counsel's receipt of the complaint. Secondly, defendant alleged law office failure in neglecting to include the verification with the initial answer, which was timely served. In our view, these circumstances established a reasonable excuse for the default (see CPLR 2005).

We also note that defendant's answer set forth a myriad of defenses including, among others, failure to state a cause of action, failure to comply with the terms and conditions of the policy, fraud or perjury on plaintiff's part and that the claim is time-barred. In addition, defendant's attorney provided Supreme Court with the original denial of coverage letter, which set forth in detail the reasons why plaintiff's claim for benefits was denied. Such assertions set forth a sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).

In view of defendant's reasonable excuse for the default, the minimal delay, defendant's expeditious motion to compel acceptance of the answer, the absence of proof that the default was willful or any indication that plaintiff was prejudiced by the delay, and the existence of an arguably meritorious defense, we conclude that Supreme Court's decision to grant defendant's motion to extend the time to answer and to compel plaintiff to accept service was a proper exercise of its discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).

The bold is mine.

Timely, but Improper: CPLR § 3012(d)

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Gazes v Bennett, 2010 NY Slip Op 01575 (App. Div., 1st, 2010)

Plaintiff brought this malpractice action against defendant in connection with his representation of the debtor and trustee in a wrongful termination action (see Horan v New York Tel. Co., 309 AD2d 642 [2003]). Plaintiff's time to commence this action and serve a summons and complaint expired on September 13, 2007, six months after the dismissal of an earlier action arising out of the same transactions (see CPLR 205[a]). Commencement was timely, but attempted service on September 12, 2007 was defective because the mailing component of service was sent to defendant's place of work in an envelope indicating it was from a law firm, an error attributable to the process server. The denial of plaintiff's request that defendant be compelled to accept late service of the pleadings was contained in a final order, and is thus appealable as of right (see CPLR 5701[a][2]).

A 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" (CPLR 3012[d]). Plaintiff submitted a reasonable excuse for delay in proper service — namely, the process server's error — which was attributable to counsel and constituted excusable law office failure (see CPLR 2005).

Plaintiff set forth a meritorious action, and the delay was excusable in light of its brevity and the absence of any pattern of default; defendant should have been compelled to accept late service pursuant to CPLR 3012(d) (see Nason v Fisher, 309 AD2d 526 [2003]). This is especially so in the absence of any prejudice to defendant, who was actually and timely — although not properly — served with the complaint (see Lisojo v Phillip, 188 AD2d 369 [1992]; see also CPLR 2001, 2004), and in the absence of any indication that plaintiff intended to abandon his claim (see Nolan v Lechner, 60 AD3d 473 [2009]).

The bold is mine.

CPLR § 3012(b); CPLR § 321(b)&(c)

CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.

Moray v Koven & Krause, Esqs., 2009 NY Slip Op 03877 (App. Div., 2nd, 2009)

To avoid dismissal for failure to serve a complaint after a demand therefor has been served pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d 643; Tutora v Schirripa, 1 AD3d 349, 350; Balgley v Cammarata, 299 AD2d 432). Here, the plaintiff failed to show the existence of a meritorious cause of action. Accordingly, the Supreme Court did not improvidently exercise its discretion in granting the defendant's motion to dismiss the action.

The plaintiff's contention that the action was stayed pursuant to CPLR 321(c) is raised for the first time on appeal and, thus, is not properly before this Court (see Telmark, Inc. v Mills, 199 AD2d 579, 580; see also KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740).

Splinters, Inc. v Greenfield, 2009 NY Slip Op 04411 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in denying the branch of the defendants' motion which was to dismiss the 2005 action. In order "[t]o avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause [*3]of action" (Balgley v Cammarate, 299 AD2d 432; see Pristavec v Galligan, 32 AD3d 834; Maldonado v Suffolk County, 23 AD3d 353; Giordano v Vanchieri & Perrier, 16 AD3d 621; Tutora v Schirripa, 1 AD3d 349). The plaintiff offered no excuse for the failure to serve a complaint during the approximately seven-month period from the demand in February 2006 to October 2006, when it purportedly intended to serve a complaint but failed to do so allegedly as a result of law-office failure. Further, until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his or her authority as attorney of record for his or her client continues, as to adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d 981, 983). Thus, even if service of the complaint in October 2006 would have been timely, the service would have been ineffective, since the plaintiff's second attorney had not yet been substituted as counsel and therefore had no authority to act for the plaintiff in that action (see CPLR 321[b]). The 2005 action should therefore have been dismissed for failure to respond properly and timely to the defendants' demand for a complaint.

The bold is mine.

CPLR R. 5015 Plaintiff not required to reject late answer where it moved to enter a default instead

CPLR R. 5015 Relief from judgment or order

CPLR R. 2101 Form of papers
(f) Defects in form; waiver

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)

Defendant's contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff's retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant's failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel's affirmation in support of the motion that his office failed to timely process the summons and complaint "due to clerical inadvertence," and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Leifer v Pilgreen Corp., 2009 NY Slip Op 03872 (App. Div., 2nd, 2009)

It is uncontested that the defendant failed to timely serve its answer. The stipulation extending its time to do so expired in October 2006 and no extension thereof was granted or even sought. Thus, in order to successfully oppose the plaintiffs' motion for leave to enter a default judgment against it, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a meritorious defense (see CPLR 5015[a][1]; Kouzios v Dery, 57 AD3d 949; Mjahdi v Maguire, 21 AD3d 1067, 1068; cf. Giovanelli v Rivera, 23 AD3d 616). The defendant failed to do so.

The defendant's insurance carrier's long delay before defending this action, without more, was insufficient to establish a reasonable excuse for the default (see Martinez v D'Alessandro [*2]Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672). Additionally, the defendant failed to demonstrate the existence of a meritorious defense. Accordingly, the plaintiffs' motion for leave to enter a default judgment and to set the matter down for an inquest should have been granted and the defendant's cross motion for leave to serve a late answer nunc pro tunc should have been denied (see CPLR 3012[d]).

Furthermore, the court erred in deeming the issue of timeliness of the answer waived by the plaintiffs' withdrawal of their prior motion for a default judgment. After the defendant served a late answer, the plaintiffs promptly moved for the same relief, bringing their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807).

CPLR § 3215; CPLR § 3012; CPLR § 308

CPLR § 3215 Default judgment

CPLR § 3012 Service of pleadings and demand for complaint

(d) Extension of time to appear or plead

CPLR § 308 Personal service upon a natural person

CPLR § 308(4)

Zareef v Wong, 2009 NY Slip Op 02990 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated August 4, 2008, which denied her motion pursuant to CPLR 3215 for leave to enter judgment against the defendants upon their default in appearing or answering, and granted the defendants' cross motion pursuant to CPLR 3012(d) to compel the plaintiff to accept their answer.

ORDERED that the order is affirmed, with costs.

The plaintiff served the defendants pursuant to CPLR 308(4) by affixing copies of the summonses and complaints to the address of the defendants' "actual place of business, dwelling place, or usual place of abode" on November 12, 2007, and by mailing copies to the same address on November 13, 2007. The proofs of service were filed on December 20, 2007, well beyond the 20-day filing period required by CPLR 308(4). In opposition to the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against the defendants upon their default in appearing or answering, the defendants served an answer on March 4, 2008, and cross-moved to compel the plaintiff to accept their answer. The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion.

While the failure to file a timely proof of service is a curable procedural irregularity, here, the plaintiff did not obtain an order permitting a late filing of proof of service (see Bank of New [*2]York v Schwab, 97 AD2d 450). Accordingly, the late filings were nullities and the defendants' time to answer never began to run (see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91 AD2d 604). Since the defendants never defaulted, the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against them was properly denied (see Hausknecht v Ackerman, 242 AD2d 604, 606; Paracha v County of Nassau, 228 AD2d 422; Rosato v Ricciardi, 174 AD2d 937). Moreover, the defendants' cross motion pursuant to CPLR 3012(d) to compel the plaintiff to accept their answer was properly granted.

  The bold is mine.

CPLR § 308 Personal service upon a natural person

CPLR § 308(4)

CPLR § 3012(d)

CPLR § 3012. Service of pleadings and demand for complaint

(d) Extension of time to appear or plead

Nolan v Lechner, 2009 NY Slip Op 01724 (App. Div., 1st, 2009)

A party who has commenced an action by service of a summons without complaint and fails to serve a complaint within 20 days of a demand must demonstrate the merits of the action and a reasonable excuse for the delay in order to avoid dismissal (CPLR 3012[d]; Barasch v Micucci, 49 NY2d 594, 599 [1980]).

Plaintiff did satisfy these requirements. On May 1, 2007, defendants served a notice of appearance and demanded a complaint, which meant that plaintiff had 20 days in which to comply (CPLR 3012[b]). On June 26, 36 days after expiration of the 20-day deadline, plaintiff served a copy of the verified complaint, attached as an exhibit to her cross motion to compel defendants' late acceptance of the complaint (see 3012[d]). Plaintiff's counsel cited law office failure for the delay, claiming to have discovered on June 1 only defendants' notice of appearance, but not their demand; also cited was the disabled plaintiff's physical difficulties in appearing at counsel's office to sign the verification. This constituted a reasonable excuse for the delay (see Wess v Olympia & York Realty Corp., 201 AD2d 365 [1994]).

Plaintiff also submitted an affidavit of merit, sufficiently detailing the injuries she allegedly suffered as a result of defendants' tortious acts. At no time did plaintiff evince an intent to abandon her claim, and defendants have not demonstrated prejudice by reason of the delay (see Rose v Our Lady of Mercy Med. Ctr., 268 AD2d 225 [2000]).

Dismissal of the action under these circumstances was an improvident exercise of the court's discretion (see Aquilar v Nassau Health Care Corp., 40 AD3d 788 [2007]).

The bold is mine.