| Franklin Credit Mgt. Corp. v Wik |
| 2010 NY Slip Op 06052 [75 AD3d 1145] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| Franklin Credit Management Corporation, Respondent, v DanielWik, Appellant. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview (Edward Rugino of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredMay 12, 2009. The order, inter alia, granted plaintiff a default judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating that part granting a default judgment, granting defendant 10 days after service of theorder of this Court with notice of entry to serve an answer, and denying plaintiff's motion and asmodified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action by serving a summons and complaintalleging that defendant breached his obligations under a promissory note, and defendant, a pro selitigant, made a pre-answer motion to dismiss the complaint for failure to state a cause of action.Defendant also sent a letter to plaintiff disputing the claims set forth in the complaint. Both themotion and letter were served upon plaintiff within two weeks of service of the summons andcomplaint, but the motion was not brought before Supreme Court because defendant failed toobtain the required request for judicial intervention (RJI) from the Monroe County Clerk'sOffice. Plaintiff did not respond to defendant's motion. Approximately eight months later,plaintiff moved for summary judgment in lieu of complaint pursuant to CPLR 3213, despite thefact that it had served a complaint. Plaintiff contended therein that it was entitled to judgmentbased on documentary evidence, i.e., defendant's failure to remit payment on the promissorynote. On the return date of plaintiff's motion, the court heard argument on plaintiff's motion aswell as defendant's motion to dismiss the complaint. In an ensuing written decision, the courtdenied defendant's motion and granted what it characterized as plaintiff's motion for "a defaultjudgment." In addition, the court determined that, because defendant failed to purchase an RJI,his motion to dismiss came before the court only in response to plaintiff's motion "for a defaultjudgment, long after the time to respond to the complaint had expired." The court thusdetermined that defendant's motion to dismiss "could no longer serve to extend [defendant's]time to answer the complaint," in accordance with CPLR 3211 (f), and that defendant thereforewas not entitled to 10 additional days in which to serve an answer.
We conclude that, although the court properly denied defendant's motion to dismiss thecomplaint, it erred in granting a default judgment inasmuch as plaintiff did not move for such[*2]relief, and we therefore modify the order accordingly. Wefurther conclude that defendant was entitled to the benefit of the 10 additional days set forth inCPLR 3211 (f) in which to serve an answer to the complaint, and we therefore further modify theorder accordingly. First, by serving plaintiff with the motion to dismiss and the letter disputingthe claim, defendant demonstrated an attempt to participate in the action pro se and "clearlynegated any intent to default in this action" (Townsend v Torres, 182 AD2d 1140, 1141[1992]; see Thomas v Callahan, 222 AD2d 1070 [1995]; Meyer v A & B Am.,160 AD2d 688, 689 [1990]). Second, although defendant did not file his motion properlybecause he failed to obtain an RJI, it is undisputed that he served the motion upon plaintiff in atimely manner, and it is service of an unsuccessful pre-answer motion to dismiss, ratherthan filing, that extends a defendant's time in which to answer the complaint under CPLR3211 (f). Finally, we must deny plaintiff's motion for summary judgment in lieu of complaintinasmuch as it is undisputed that a complaint previously was served, and we therefore furthermodify the order accordingly. Present—Centra, J.P., Fahey, Peradotto, Lindley and Pine,JJ.