Guzetti v. City of New YorkGuzetti v. City of New York
Concurrence Opinion
concur in a separate memorandum by McGuire, J., as follows: This appeal presents two procedural questions: (1) whether the five-day allowance accorded by CPLR 2103 (b) (2) applies when a party serves a cross motion by mail, and (2) whether a defendant seeking to compel acceptance of a late answer must proffer an affidavit of merit or demonstrate a meritorious defense where the plaintiff has neither obtained nor established entitlement to a default judgment.
On March 24, 2003, plaintiff commenced the instant action against the City of New York and Captain Dawn Damm, an employee of the City’s Department of Correction, claiming, among other things, that Damm utilized excessive force in restraining plaintiff while plaintiff was being detained at a city correctional facility. The City timely answered the action on its own behalf. Service was ultimately effected on Damm on January 21, 2004 pursuant to CPLR 308 (2), with the affidavit of service being filed two days later. Damm failed to answer the action by March 3, 2004, the last date on which she could have interposed a timely answer (see CPLR 308 [2]; 3012 [c]; Siegel, NY Prac § 72, at 116 [4th ed] [“when CPLR 308 (2) is used, the defendant actually has 40 days in which to respond, measured from the filing of proof of service”]).
On January 20, 2005, plaintiff moved for a default judgment against Damm based on her failure to answer, and to strike the City’s answer based on its failure to provide Supreme Court with a copy of Damm’s personnel file for in camera review. On February 16, defendants served an “amended answer,” which was identical to the City’s answer save the addition of Damm as an answering defendant. Defendants subsequently cross-moved, in effect, to compel plaintiff to accept Damm’s untimely answer. Defendants submitted no affidavit of merit and did not otherwise demonstrate a meritorious defense to the action. Supreme Court granted defendants’ cross motion and denied plaintiffs motion in its entirety.
Supreme Court properly denied that aspect of plaintiffs motion that sought a default judgment against Damm. “CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action” (Joosten v Gale,
Here, plaintiff submitted no affidavit in support of her motion, and her complaint was verified by her attorney, who had no personal knowledge of the facts giving rise to this action. Accordingly, these submissions were insufficient to permit entry of a default judgment against Damm (see Finnegan v Sheahan,
The majority, relying on plaintiffs “detailed and sworn” notice of claim, finds that plaintiff made a sufficient showing to permit entry of a default judgment against Damm. The notice of claim included in the record on appeal is not verified. Although the parties do not dispute that it was in fact verified, nothing in the record on appeal sheds light on how it was verified. General Municipal Law § 50-e (2) requires, among other things, that a notice of claim be in writing and sworn to by or on behalf of the claimant. Thus, plaintiff could have satisfied section 50-e (2) by serving a notice of claim that she herself verified or one that had been verified on her behalf by counsel. A notice of claim verified by plaintiff would constitute evidence in admissible form that could support entry of a default judgment; however, one verified by counsel could not (cf. Joosten,
Even assuming that plaintiff did verify her notice of claim, it is substantively deficient. Plaintiffs notice of claim states that, “[o]n March 27, 2002, at approximately 8:00 a.m. at [the facility], plaintiff was assaulted by . . . Dam[m] and others, she was then caused to be handcuffed without justification for several
With respect to defendants’ cross motion, plaintiff contends that it was untimely. Plaintiffs motion for a default judgment against Damm, made when it was mailed on January 20, 2005 (see CPLR 2211, 2103 [b] [2]) and marked returnable on February 10, requested that defendants’ answering papers, if any, be served at least seven days before the return date. The return date was adjourned by stipulation to February 28. Defendants made their cross motion on February 25 by mailing a copy thereof to plaintiffs attorney.
Notwithstanding plaintiffs request that all answering papers be served at least seven days before the return date, the cross motion was timely. CPLR 2215 provides that “[a]t least three days prior to the time at which the [underlying] motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief . . . .” A cross motion is made when served, and therefore defendants’ cross motion, served by mail three days prior to the stipulated return date, was timely (see Siegel, NY Prac, § 249, at 423 [4th ed]; Siegel, 2005 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR C2215:l, 2006 Pocket Part, at 77; see also CPLR 2211).
Although there is authority that requires the five-day allowance accorded by CPLR 2103 (b) (2) to be added when a party serves a cross motion by mail (D’Aniello v T.E.H. Slopes,
Regarding the sufficiency of the papers supporting defendants’ cross motion, the dispositive issue is whether defendants must proffer an affidavit of merit or otherwise demonstrate a meritorious defense to compel acceptance of Damm’s untimely answer. CPLR 3012 (d) provides, in relevant part, that a “court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of [a] reasonable excuse for [the] delay or default.” This subdivision was enacted in 1983 (L 1983, ch 318) for the express purpose of effectively overruling decisions that divested courts of the discretion to consider “law office failure” (see CPLR 2005) as a reason for pleading delays (see Report of Advisory Comm on Civ Prac, 1983 McKinney’s Session Laws of NY, at 2877-2879; Mem of Office of Ct Admin, 1983 McKinney’s Session Laws of NY, at 3014).
The legislative history behind CPLR 3012 (d) establishes that the potential merits of a defense are only one factor in the court’s discretionary determination; the length of delay, the excuse offered, the absence (or presence) of willfulness and the possibility of prejudice to other parties to the action must also be considered and balanced in determining whether relief is appropriate (see Report of Advisory Comm on Civ Prac, 1983 McKinney’s Session Laws of NY, at 2878-2879; Mem of Office of Ct Admin, 1983 McKinney’s Session Laws of NY, at 3014-3015; Sponsor’s Mem, 1983 NY Legis Ann, at 142, 143). This Court has repeatedly held that in the absence of a default order or judgment, an affidavit of merit is not an essential component of an application to compel acceptance of a late answer, but rather is one factor to be considered (see e.g. Nason v Fisher,
However, the Second Department has held that “[a] defen
This approach is at odds with the legislative history of CPLR 3012 (d), which shows that the statute was meant both to recognize a distinction between delays in the service of pleadings and defaults that have resulted in an order or judgment, and to endow the courts with discretion and flexibility in dealing with the former (see Sponsor’s Mem, 1983 NY Legis Ann, at 144; see also Report of Advisory Comm on Civ Prac, 1983 McKinney’s Session Laws of NY, at 2879; Mem of Office of Ct Admin, 1983 McKinney’s Session Laws of NY, at 3015).
Moreover, the Court of Appeals decisions cited by the Second Department do not support its conclusion that an affidavit of merit must accompany a motion to extend the time to answer made after the time to do so has expired but before a default order or judgment has been sought or rendered. Those decisions did not construe CPLR 3012 (d), rather, they dealt with (1) defaults under CPLR 3012 (b), which requires a plaintiff who commences an action utilizing a summons with notice (see CPLR 305 [b]) to serve upon defendant a complaint within 20 days after service of a demand (see Sammons v Freer,
In light of the foregoing, I conclude that the absence of an affidavit of merit is not necessarily fatal to a motion to compel acceptance of a late answer, where the plaintiff has neither established her entitlement to a default judgment nor obtained such a judgment. Rather, the presence (or absence) of an affidavit of merit is one factor to consider in determining whether a defendant is entitled to relief under CPLR 3012 (d). Of course, a party acts at his or her peril if an affidavit of merit is not proffered.
Given that the absence of an affidavit of merit does not preclude consideration of the cross motion, I agree with the majority that Supreme Court providently exercised its discretion in granting the cross motion. The City was obligated to perform an investigation to ascertain whether it was statutorily required to defend and indemnify Damm (see General Municipal Law § 50-k). We have previously found that delay caused by such an investigation excuses the City’s failure to timely answer an action on behalf of an employee (see Silverio v City of New York,
On the basis of this pattern of disregard by the City of its discovery obligations, Supreme Court would have been justified in imposing a penalty for the City’s repeated failures. However, on this record, I would not disturb Supreme Court’s exercise of discretion, which is entitled to considerable but not unlimited deference (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker,
Notes
The late Senator Ronald Stafford, the sponsor of the legislation in the Senate, noted that “3012 (d) [wa]s enacted in order to preserve a distinction between delays in service of pleadings and defaults which have ripened to judgment or an order of dismissal, and to permit flexibility of treatment. Thus, although the language of 3012 (d) is substantially identical to that of 5015 (a) [statute permitting relief from default judgments], there is no intent to extend the full judicial gloss on 5015 (a) to [3012 (d)]. Specifically, while the merits of the applicant’s case may sometimes be an appropriate factor for consideration, routine insistence on a showing of merits in cases of short delay would be an unwarranted burden .... This legislation attempts to recognize that the courts must have broad discretion to regulate litigation in the interests of justice, while preserving adherence to reasonable requirements of diligence as essential to the administration of justice” (Sponsor’s Mem, 1983 NY Legis Ann, at 144 [emphasis added]).
Lead Opinion
Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 11, 2005, which denied plaintiffs motion for a default judgment against defendant Damm and to strike defendant City of New York’s answer, and granted defendants’ cross motion to compel acceptance of an amended answer nunc pro tunc, affirmed, without costs.
In this personal injury action against the City and its employee, a Correction Department captain, the motion court properly exercised its discretion in denying plaintiff’s motion for a default judgment against the employee. Although plaintiffs detailed and sworn notice of claim constituted sufficient proof of her cause of action for purposes of CPLR 3215 (f), defendants demonstrated a reasonable excuse for their delay (see Drawhorn v Iglesias,
The IAS court also properly exercised its discretion in denying plaintiffs motion to strike the City’s answer, since plaintiff failed to establish that the City’s delay in submitting defendant Damm’s personnel records for an in camera review was willful or contumacious (see Frye v City of New York,
To the extent that plaintiff argues that defendants’ cross motion and affirmation in opposition were untimely, we find that plaintiff was not prejudiced by defendants’ minimal delay (see Glasz v Glasz,
We have considered and rejected plaintiffs remaining arguments. Concur — Buckley, P.J., Tom and Nardelli, JJ.