| Case v Cayuga County |
| 2009 NY Slip Op 02191 [60 AD3d 1426] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Robert Verle Case, Appellant, v Cayuga County et al.,Respondents, et al., Defendants. |
—[*1] The Law Firm of Frank W. Miller, East Syracuse (Iman Abraham of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.),entered May 15, 2007. The order, among other things, dismissed the amended complaint againstdefendants Cayuga County, James H. Orman, Cayuga County Treasurer, and Alan P. Kozlowski,Director, Cayuga County Real Property Tax Services.
It is hereby ordered that the order so appealed from is unanimously modified on the law byreinstating the amended complaint against defendants Cayuga County, James H. Orman, CayugaCounty Treasurer, and Alan P. Kozlowski, Director, Cayuga County Real Property Tax Services,and by providing that the motion is granted in part and that plaintiff is directed to accept serviceof the answer to the amended complaint of those defendants dated November 27, 2006 and asmodified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, to vacate the conveyanceof three parcels of property to defendant Cayuga County (County) following tax foreclosureproceedings. Supreme Court did not abuse its discretion in impliedly granting that part of themotion of the County, its County Treasurer and its Director of Real Property Tax Services(County defendants) for an order compelling plaintiff to accept service of their late answer to theamended complaint against them and in denying plaintiff's cross motion for a default judgmentagainst them (see CPLR 3012 [d]; Humphrey v WIXT News Ch. 9, 12 AD3d1087 [2004]; Cleary v East Syracuse-Minoa Cent. School Dist., 248 AD2d 1005 [1998];see also Village of Parish v Weichert, 291 AD2d 818 [2002]). Because the order onappeal does not expressly grant that part of the motion seeking to compel plaintiff to acceptservice of the late answer, we modify the order accordingly. "Public policy favors the resolutionof a case on the merits, and a court has broad discretion to grant relief from a pleading default ifthere is a showing of merit to the defense, a reasonable excuse for the delay and it appears thatthe delay did not prejudice the other party" (Cleary, 248 AD2d 1005 [1998]; seeHumphrey, 12 AD3d 1087 [2004]). The attorney's affirmation submitted in support of themotion established that the default was of short duration, was attributable to law office failureand was not willful. Further, inasmuch as the County defendants [*2]timely answered the original complaint and the amended complaintagainst them was substantially the same as the original complaint, plaintiff has failed todemonstrate that he was prejudiced by the six-day delay in the service of the answer to theamended complaint (see generally Niagara Mohawk Power Corp. v Freed, 278 AD2d839, 841 [2000]).
Contrary to plaintiff's contention, an affidavit of merit is not a precondition to obtainingrelief under CPLR 3012 (d) (see Weis v Weis, 138 AD2d 968, 969 [1988]; Ching vChing, 125 AD2d 934 [1986]). In any event, we conclude that the affirmation of the Countydefendants' attorney and the answer to the amended complaint itself established severalmeritorious defenses (see generally Matter of Manufacturers & Traders Trust Co. vMyers, 38 AD3d 965 [2007], lv dismissed 8 NY3d 1019 [2007]). Contrary toplaintiff's further contention, any defect in the verification of the answer of the Countydefendants to the amended complaint should be ignored inasmuch as plaintiff failed todemonstrate that he was substantially prejudiced by that alleged defect (see CPLR 3026;Duerr v 1435 Tenants Corp., 309 AD2d 607 [2003]; Matter of Nafalski v Toia,63 AD2d 1039 [1978]).
We agree with plaintiff, however, that the court erred in sua sponte granting the Countydefendants summary judgment dismissing the amended complaint against them, and we thereforefurther modify the order accordingly. " 'While the [c]ourt has the power to award summaryjudgment to a nonmoving party, predicated upon a motion for that relief by another party, it maynot sua sponte award summary judgment if no party has moved for summary judgment'. . ., unless it appears from a reading of the parties' papers that they weredeliberately charting a course for summary judgment by laying bare their proof" (Warren vMikle, 40 AD3d 974, 975 [2007]). "The power of the court to award summary judgment foror against a nonmoving party pursuant to CPLR 3212 (b) does not dispense with the necessityfor fair notice and an opportunity of a party to present his or her defenses" (Whitman RealtyGroup, Inc. v Galano, 52 AD3d 505, 506 [2008]). Here, it does not appear on the recordbefore us that plaintiff and the County defendants were "charting a course for summaryjudgment" (Warren, 40 AD3d at 975). The County defendants did not move for summaryjudgment dismissing the amended complaint against them, nor indeed did they move to dismissthe amended complaint against them for failure to state a cause of action pursuant to CPLR 3211(a) (7). Although plaintiff's cross motion for a default judgment against the County defendantssought summary judgment on the amended complaint as an alternative form of relief, theattorney's affirmation submitted in support of the cross motion did not address the merits of thecase, and we thus do not deem the cross motion to be one for summary judgment (seegenerally Sylvester v New Water St. Corp., 16 AD3d 486, 488 [2005]).Present—Hurlbutt, J.P., Martoche, Fahey and Gorski, JJ.