Susanne Giglio et al., Respondents, v NTIMP, INC., Doing Business as Napper Tandy‘s Pub, Defendant and Third-Party Plaintiff-Respondent-Appellant, et al., Defendant. DAWN MCNEIL, Third-Party Defendant-Appellant.
Second Department, June 14, 2011
June 14, 2011
926 N.Y.S.2d 546
David J. Sobel, P.C., Smithtown, for third-party defendant-appellant.
White Fleischner & Fino, LLP, New York City (Jared H. Rabkin of counsel), for defendant and third-party plaintiff-respondent-appellant.
OPINION OF THE COURT
Dillon, J.P.
These appeals provide an occasion to clarify for the bar issues of timeliness and procedure related to default judgments sought against plaintiffs who fail to reply to defendants’ counterclaims.
I. Relevant Facts
The facts underlying this appeal are tragic. On April 11, 2006, Robert A. Giglio, Sr. (hereinafter Robert Sr.), his 19-year-old son, Robert A. Giglio, Jr. (hereinafter Robert Jr.), and Robert Sr.‘s brother, Shawn P. Giglio (hereinafter Shawn), consumed alcoholic beverages at a pub owned by the defendant, NTIMP, Inc., doing business as Napper Tandy‘s Pub (hereinafter Napper Tandy), on County Road 83 in the Town of Brookhaven. Shawn thereafter drove from the pub in a vehicle owned by the
Susanne, suing individually and in her capacity as administrator of the estate of Robert Jr., commenced this action together with Robert Sr. to recover damages against Napper Tandy and D‘Agostino. The plaintiffs asserted causes of action against Napper Tandy alleging, inter alia, violations of
Napper Tandy interposed an answer dated May 2, 2007, denying the material allegations of the complaint, asserting 20 affirmative defenses, and interposing a cross claim against D‘Agostino and a counterclaim against the plaintiff Robert Sr. Specifically, the counterclaim alleged that any injuries sustained by Robert Jr. were caused in whole or in part by the negligent acts of Robert Sr., which presumably allude to Robert Sr.‘s acquiescence to the consumption of alcohol by Shawn and Robert Jr., and to Shawn‘s subsequent operation of D‘Agostino‘s automobile. An affidavit of service evidences service of Napper Tandy‘s answer upon the plaintiffs’ counsel on May 2, 2007, via regular mail.
Approximately 11 months later, D‘Agostino and Shawn‘s estate settled with the plaintiffs for the combined sum of $50,000. In furtherance of that partial settlement, the settling parties executed a notarized general release, releasing D‘Agostino and Shawn‘s estate, and their heirs, executors, administrators, successors, and assigns, from “all actions, causes of action, suits, debts, dues, sums of money . . . damages, judgments, extants, executions, claims, and demands whatsoever.” The release cited the sum of $50,000 as the consideration received and acknowledged by the plaintiffs, and there is no dispute that this $50,000 was, in fact, paid. In a decree dated
Thereafter, Napper Tandy impleaded Dawn McNeil, as administrator of the estate of Shawn P. Giglio, by the filing and service of a third-party summons and complaint dated April 30, 2009. Issue was joined in the third-party action by service of an answer, which pleaded, as an affirmative defense, inter alia, the release provisions of
Independent of the partial settlement and the third-party action, Napper Tandy moved, among other things, for a default judgment on its counterclaim against Robert Sr., based upon his failure to serve a reply to the counterclaim that had been asserted against him. The notice of motion was dated June 5, 2008, approximately 13 months after the service, on May 2, 2007, of the answer containing the counterclaim.
By notice dated June 23, 2008, the plaintiffs cross-moved to dismiss the counterclaim asserted against Robert Sr. or, alternatively, for leave to serve a late reply. The plaintiffs argued that more than one year had elapsed from the date upon which a reply to the counterclaim had become due and that, accordingly, the counterclaim should be dismissed as abandoned pursuant to
Napper Tandy opposed that branch of the cross motion which was to dismiss its counterclaim, arguing that it had timely moved for a default judgment against Robert Sr. by serving its notice of motion and supporting papers within one year of his default. Napper Tandy contended that Robert Sr.‘s default did not occur until the lapse of more than 35 days after it had served the answer containing the counterclaim upon Robert Sr.‘s attorney. Specifically, Napper Tandy argued that, by virtue of
By separate notice of motion dated September 1, 2009, McNeil, as the administrator of Shawn‘s estate, moved pursuant to
The motions and cross motion were resolved by the Supreme Court in an order dated November 30, 2009 (2009 NY Slip Op 32855[U] [2009]). In that order, the Supreme Court, inter alia, granted that branch of the plaintiffs’ cross motion which was pursuant to
McNeil appeals from so much of the order as denied her motion pursuant to
II. Dismisssal of the Counterclaim as Abandoned
The Supreme Court properly granted that branch of the plaintiffs’ cross motion which was pursuant to
“[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.”
While counterclaims are not specifically mentioned anywhere in
Here, Napper Tandy‘s motion for a default judgment on the counterclaim was untimely.
The language of
The papers submitted by Napper Tandy in support of its motion for a default judgment on the counterclaim failed to set forth any argument addressing the issue of whether it had a reasonable excuse for its failure to seek a default judgment against Robert Sr. within the requisite one-year period after his default. Rather, Napper Tandy merely argued that its motion was timely, an argument that is without merit. Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and “shall” dismiss the claim pursuant to
We nonetheless reject Napper Tandy‘s timeliness argument, as the 30-day time frame articulated in
“[a]n appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303 . . . the appearance shall be made within thirty days after service is complete.”
However,
“[t]he commencement of an action in the state by a person not subject to personal jurisdiction is a designation by him of his attorney appearing in the action . . . as agent, during the pendency of the action, for service of a summons pursuant to [CPLR] 308, in any separate action in which such a person is a defendant and another party to the action is a plaintiff if such separate action would have been permitted as a counterclaim had the action been brought in the supreme court” (emphasis added).
This statute applies only to nondomiciliary plaintiffs (see Alexander, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR 303, at 6), and there is no evidence in the record that Robert Sr. is a nondomiciliary plaintiff. To the contrary,
Napper Tandy‘s contention on its appeal, that any violation of the one-year deadline of
We note that the pitfall of
The Supreme Court should have granted the third-party defendant‘s motion pursuant to
Release is an expressed basis for the dismissal of a cause of action under
“(1) the plaintiff or claimant receives, as part of the agreement, monetary consideration greater than one dollar;
“(2) the release or covenant completely or substantially terminates the dispute between the plaintiff or claimant and the person who was claimed to be liable; and
“(3) such release or covenant is provided prior to entry of judgment” (
General Obligation Law § 15-108 [d] ).
The release at issue here was executed by the signatory parties on March 31, 2008, and April 3, 2008, after the effective date of the amended statute.
Here, the language of the release is neither vague nor ambiguous (see Lipiner v Santoli, 60 AD3d 1001, 1002 [2009]; Barry v Hildreth, 9 AD3d 341, 342 [2004]), and it provides that the plaintiffs release Shawn‘s estate from, among other things, “all actions, causes of action [and] suits” in exchange for consideration of $50,000, “receipt whereof is hereby acknowledged.” It is undisputed that the plaintiffs received monetary consideration of greater than one dollar as part of the agreement (see
Moreover, although the third-party complaint also asserts a cause of action for common-law indemnification, under the circumstances of this case, that cause of action is, in actuality, a cause of action for contribution (see Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 644-645 [1988]; Hoogland v Transport Expressway, Inc., 72 AD3d 1026, 1027 [2010]; Rudden v Bernstein, 2008 NY Slip Op 30068[U], *15 [Sup Ct, Suffolk County 2008], mod on other grounds 61 AD3d 736 [2009]; see generally Barry v Hildreth, 9 AD3d 341, 342 [2004]; cf. Zona v Oatka Rest. & Lounge, 68 NY2d 824, 825 [1986]; Coughlin v Barker Ave. Assoc., 202 AD2d 622, 623-624 [1994]) and, thus, is barred (see
Similarly, Napper Tandy cites no authority to establish that the Surrogate‘s Court‘s decree, reciting that consideration had been paid to settle the plaintiffs’ claims against D‘Agostino, has the effect of removing the release from the scope of
The remaining contentions of Napper Tandy and McNeil either are without merit or have been rendered academic by our determination.
Balkin, Leventhal and Chambers, JJ., concur.
Ordered that the order is reversed insofar as appealed from by the third-party defendant, on the law, and the third-party defendant‘s motion pursuant to
Ordered that the order is affirmed insofar as appealed from by the defendant and third-party plaintiff; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant, payable by the defendant third-party plaintiff.