Travis v. Mason

Apr 11, 2005
Versions:17 A.D.3d 449
792 N.Y.S.2d 339
2005 N.Y. App. Div. LEXIS 3813

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lally, J.), entered February 26, 2004, which granted the motion of the defendant Century 21 Real Estate Corporation pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it, and denied, as academic, their cross motion for leave to serve an amended complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the respondent‘s motion to dismiss the complaint insofar as asserted against it. The plaintiffs alleged that the respondent could be held vicariously liable for the conduct of the defendant Century 21 American Homes and the defendants Phyllis Fine and Thomas Gallagher (employees of Century 21 American Homes) on an agency theory. However, the respondent presented documentary evidence that no such relationship existed, and that Century 21 American Homes was a mere franchisee over which the respondent lacked the requisite supervision, direction or control (see Tobacco v North Babylon Fire Dept., 251 AD2d 398, 399-400 [1998]; Andreula v Steinway Baraqafood Corp., 243 AD2d 596 [1997]; Matter of Sperte v Shaffer, 111 AD2d 856, 858 [1985]).

The plaintiffs’ cross motion for leave to serve an amended complaint was properly denied as unnecessary. The amended complaint was served as of right within the 20-day period provided by CPLR 3025 (a). The service of the amended complaint did not render academic the respondent‘s motion to dismiss, which was addressed to the merits (see Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2003]).

The plaintiffs’ remaining contentions are without merit. Adams, J.P., Ritter, Mastro and Rivera, JJ., concur.

In an action to recover damages for malicious prosecution, the defendants appeal (1) from a judgment of the Supreme Court, Westchester County (Colabella, J.), dated January 9, 2004, which, upon a decision of the same court entered November 5, 2003, made after an inquest on damages, is in favor of the plaintiff and against them in the principal sums of $100,000 as compensatory damages and $400,000 as punitive damages, and (2), as limited by their brief, from so much of an order of the same court entered September 13, 2004, as denied that branch of their motion which was to vacate a prior order of the same court entered March 4, 2003, striking their answer pursuant to 22 NYCRR 202.27 upon their failure to appear at a conference.

Ordered that the appeal from so much of the judgment as was entered upon the defendants’ default is dismissed, as no appeal lies from that portion of the judgment (see CPLR 5511; Katz v Katz, 68 AD2d 536 [1979]) and, in any event, the appeal from the judgment is academic in light of our determination on the appeal from the order entered September 13, 2004; and it is further,

Ordered that the order entered September 13, 2004, is reversed insofar as appealed from, on the law, that branch of the defendants’ motion which was to vacate the order entered March 4, 2003, is granted, the judgment and the order entered March 4, 2003, are vacated, the answer is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith; and it is further,

Ordered that the defendants are awarded one bill of costs.

CPLR 5015 (a) (1) permits a court to vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]; Crystal Run Sand & Gravel v Milnor Constr. Corp., 301 AD2d 491 [2003]). Although it is generally within the sound discretion of the court to determine what constitutes a reasonable excuse, reversal is warranted if that discretion is improvidently exercised (see Orwell Bldg. Corp. v Bessaha, supra). In this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants’ motion which was to vacate the order entered March 4, 2003, since, under the facts of this case, they demonstrated both a reasonable excuse for the default and the existence of a meritorious defense.

The defendants’ remaining contentions have been rendered academic in light of our determination. Florio, J.P., H. Miller, Cozier and S. Miller, JJ., concur.