| Kostun v Gower |
| 2009 NY Slip Op 03430 [61 AD3d 1307] |
| April 30, 2009 |
| Appellate Division, Third Department |
| Dennis E. Kostun, Respondent, v David Gower et al., Defendants,and Jennifer M. Cimaomo, Appellant. |
—[*1] Hinman, Howard & Kattell, L.L.P., Binghamton (Ronald Greene of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered May 28, 2008 inBroome County, which, among other things, granted plaintiff's motion for a default judgmentagainst defendant Jennifer M. Cimaomo.
Plaintiff was the victim of a brutal attack in August 2002 which rendered him a quadriplegic.He commenced this action in 2003 against the two individuals who personally caused hisinjuries, as well as several other individuals who were present and allegedly conspired in theassault. One such defendant, defendant Jennifer M. Cimaomo (hereinafter defendant), failed totimely answer and, in 2007, plaintiff moved for a default judgment as to liability against her.Over defendant's opposition, Supreme Court found defendant in default. Defendant nowappeals.[FN1][*2]
In considering an application for a default judgment, acourt must ascertain whether "the defendant demonstrated a reasonable excuse for the defaultand a meritorious defense" (Drucker v Ward, 293 AD2d 891, 891-892 [2002]). Inaddition, courts have the inherent power to forgive even an unexplained default "in the interestof justice" (B.U.D. Sheetmetal v Massachusetts Bay Ins. Co., 248 AD2d 856, 856[1998]; see Wade v Village ofWhitehall, 46 AD3d 1302, 1303 [2007]). Here, defendant admits accompanying a groupof individuals to confront plaintiff, but alleges that she did not take any part in the planning orexecution of the assault. After reviewing the record, we find that defendant has met her burdenof demonstrating viable questions of fact as to whether she conspired or otherwise participated inthe assault. Hence, she demonstrated a potentially meritorious defense (see Cippitelli v Townof Niskayuna, 277 AD2d 540, 542 [2000]; Cerrone v Fasulo, 245 AD2d 793, 794[1997]; see also Poree v Bynum, 56AD3d 261, 262 [2008]).
Turning to the issue of excuse, it is conceded that defendant's answer was untimely; althoughshe was obligated to answer within 20 days of personal service, which occurred on September15, 2003 (see CPLR 320 [a]), she did not serve her answer until October 27, 2003.However on October 8, 2003, at which point defendant's answer was late by three days, she wasagain served with the same summons and complaint by mail. Acting pro se, rather than seek anextension of her time to answer, defendant simply answered as if her time to answer began to runanew from the second service. We find this situation akin to those where we have held that"defendant['s] default may be permissibly attributed to excusable 'law office failure' "(Cerrone v Fasulo, 245 AD2d at 794). Further, although defendant failed to take anyimmediate action after plaintiff returned her answer as untimely, when notified of the impendingdefault she promptly obtained counsel who appeared pro bono to oppose entry of the defaultjudgment.
On this record, moreover, it appears that defendant's default was not willful and that plaintiffwas not prejudiced by her delay in answering (see Drucker v Ward, 293 AD2d at892).[FN2]Indeed, "it is readily apparent that defendant[ ] did not intend to abandon [her] defense in thisaction" (Rickert v Chestara, 56AD3d 941, 942 [2008]). "Thus, given the questions of fact as to merit, the brief delay, thelack of intention on defendant['s] part to default, the failure of plaintiff to demonstrate anyprejudice attributable to the delay and the policy preference in favor of resolving disputes on themerits, we conclude that defendant['s] untimeliness should have been excused in this instance"(Cerrone v Fasulo, 245 AD2d at 794 [citation omitted]; see Rickert v Chestara,56 AD3d at 942; Wade v Village of Whitehall, 46 AD3d at 1303; Harcztark v Drive Variety, Inc., 21AD3d 876, 876-877 [2005]).
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted plaintiff's motionfor a default judgment against defendant Jennifer M. Cimaomo; motion denied to that extent andmatter remitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: While no appeal generally liesfrom an order entered upon default (see CPLR 5511), that prohibition does not applywhere, as here, the defaulting party appears and contests the application for a default judgment(see ABS 1200, LLC vKudriashova, 60 AD3d 1164, 1165 n 3 [2009]; Robert Marini Bldr. v Rao, 263AD2d 846, 848 [1999]).
Footnote 2: Notably, plaintiff's motion for adefault judgment against defendant was not made until August 16, 2007, more than 3½years after rejecting defendant's answer.