Robin Scott Carrington, appellant, v Northwell Health, et al., respondents.
2022-04615 (Index No. 726591/21)
Appellate Division, Second Judicial Department
January 8, 2025
2025 NY Slip Op 00079
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.
Published by New York State Law Reporting Bureau pursuant to
Robin Scott Carrington, Deer Park, NY, appellant pro se.
Littler Mendelson, P.C., Melville, NY (Daniel Gomez-Sanchez of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination and breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered May 4, 2022. The order, insofar as appealed from, denied the plaintiff‘s motion for leave to enter a default judgment against the defendants and granted those
ORDERED that the order is affirmed insofar as appealed from, with costs.
In May 2021, the plaintiff commenced this action against the defendants, Northwell Health (hereinafter Northwell) and Michael Kylie, a former Northwell employee who had left Northwell‘s employment one month earlier. The complaint sought to recover damages, inter alia, for employment discrimination and breach of contract. According to the single affidavit of service produced by the plaintiff, he served the summons and complaint in July 2021 on Northwell at Northwell‘s place of business. The defendants failed to answer the complaint or appear in the action.
On November 11, 2021, the plaintiff served a notice of motion for leave to enter a default judgment against the defendants. The defendants opposed the plaintiff‘s motion and, by notice of motion dated November 30, 2021, moved for an extension of time to answer the complaint and pursuant to
The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to
“To extend the time to answer a complaint and to compel the plaintiff to accept late service of an answer pursuant to
Here, Northwell submitted an affidavit from a legal assistant in its Office of Legal Affairs who had received the copy of the summons and complaint that was served upon Northwell. The assistant explained that while, ordinarily, upon receiving pleadings, she would electronically log the documents and email them to a paralegal, who would, in turn, transmit the documents to a Northwell attorney, on this occasion, due to an oversight, she failed to electronically log the documents and email them to the paralegal. Thus, the assistant explained, the paralegal and attorneys were unaware that pleadings had been served upon Northwell for this action. An affirmation from the assistant vice president of Northwell‘s Office of Legal Affairs confirmed that it was not until the plaintiff served the notice of motion for leave to enter a default judgment that he learned of this action and, after an investigation, located the copy of the summons and complaint that had been served upon Northwell. Northwell‘s outside counsel was immediately contacted and promptly sought an extension of time to answer.
Thus, Northwell demonstrated that the default was caused by an isolated and unintentional error on the part of a legal assistant in failing to log and transmit the summons and complaint to a paralegal for assignment to an attorney. Under the circumstances, and especially considering that Northwell moved expeditiously to cure the default, the lack of willfulness on the part of Northwell, the absence of prejudice to the plaintiff, and the strong public policy in favor of deciding cases on the merits, we cannot say that the Supreme Court improvidently excised its discretion in accepting Northwell‘s proffered excuse for the default (see Melendez v John P. Picone, Inc., 215 AD3d 665, 666 [reasonable excuse presented where the plaintiff‘s attorney explained that an email notifying his firm of the return date of the defendants’ motion had been deleted before the date was entered into the firm‘s office calendaring system]; Nationstar Mtge., LLC v Mandel, 208 AD3d 668, 669 [default excusable where attorney explained that he missed an email from former counsel asking him to cover a conference]; Jacobson v Val, 206 AD3d 803, 804 [reasonable
Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for an extension of Northwell‘s time to file an answer and properly denied the plaintiff‘s motion for leave to enter a default judgment.
The defendants’ remaining contention is without merit.
IANNACCI, J.P., GENOVESI and TAYLOR, JJ., concur.
DOWLING, J., concurs in part and dissents in part, and votes to modify the order, on the law and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the plaintiff‘s motion which was for leave to enter a default judgment against the defendant Northwell Health, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting that branch of the defendants’ motion which was to extend the time for the defendant Northwell Health to answer the complaint, and substituting therefore a provision denying that branch of the motion, and, as so modified, to affirm the order insofar as appealed from, with the following memorandum:
In May 2021, the plaintiff commenced this action against the defendants, Northwell Health (hereinafter Northwell) and Michael Kylie, inter alia, to recover damages for employment discrimination. In July 2021, Northwell was served with the summons and complaint at 2000 Marcus Avenue, Northwell‘s place of business. After Northwell‘s time to answer expired, on November 11, 2021, the plaintiff served the defendants with a motion for leave to enter a default judgment.
By notice of motion dated November 30, 2021, the defendants moved, among other things, to extend Northwell‘s time to answer the complaint and pursuant to
I agree with the majority that the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to
However, in my view, the Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was to extend Northwell‘s time to answer the complaint. “To extend the time to answer a complaint and to compel the plaintiff to accept late service of an answer pursuant to
The scenario presented here is not akin to the type of law office failure which this Court has found sufficient to constitute a reasonable excuse, such as a single missed email notifying counsel of a conference date or return date of a motion (see Nationstar Mtge., LLC v Mandel, 208 AD3d 668, 669; see also Melendez v John P. Picone, Inc., 215 AD3d 665, 666), a mistake in making a calendar entry (see Jacobson v Val, 206 AD3d 803, 804; Bank of N.Y. Mellon v Faragalla, 174 AD3d 677, 678), or a mistaken belief that motion papers emailed to a court were received by the intended Justice (see Logan v 250 Pac., LLC, 210 AD3d 1064, 1066). Quite the contrary, I find that Northwell‘s excuse for its failure to timely answer the complaint amounts to precisely the type of conclusory and uncorroborated claim of mere neglect insufficient to establish a reasonable excuse. Although the legal assistant‘s affidavit and the assistant vice president‘s affirmation both recited Northwell‘s procedures for emailing copies of summonses received at the Office of Legal Affairs to a paralegal, a description of Northwell‘s procedures for receipt of summonses does not constitute facts explaining or justifying the reason for its default. The legal assistant explained, at most, that she received the summons and complaint when it was served on
ENTER:
Darrell M. Joseph
Clerk of the Court