| McGee v Dunn |
| 2010 NY Slip Op 06233 [75 AD3d 624] |
| July 27, 2010 |
| Appellate Division, Second Department |
| James P. McGee, Appellant, v James Dunn,Respondent. |
—[*1] Philip Douglas Marin, Carmel, N.Y., for respondent.
In an action to recover damages for libel and malicious prosecution, the plaintiff appealsfrom an order of the Supreme Court, Dutchess County (Dolan, J.), dated November 5, 2008,which denied his motion for leave to enter judgment upon the defendant's default in answeringthe complaint and for an inquest on the issue of damages, and granted the defendant's crossmotion pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting the defendant's motion pursuant to CPLR 3211 (a) to dismiss thecomplaint and substituting therefor a provision denying the motion; as so modified, the order isaffirmed, without costs or disbursements.
The defendant was personally served with the summons and verified complaint on July 23,2008, and failed to answer the complaint, appear, or move with respect thereto within the 20-daystatutory period (see CPLR 320 [a]). In late August 2008 the plaintiff moved for leave toenter a judgment against the defendant upon his default in answering and for an inquest on theissue of damages. The defendant cross-moved to dismiss the complaint pursuant to CPLR 3211(a). The Supreme Court denied the plaintiff's motion and granted the defendant's motion todismiss the complaint. We modify.
Although a defaulting defendant is deemed to have admitted all the allegations in thecomplaint, "the legal conclusions to be drawn from such proof are reserved for the SupremeCourt's determination" (Venturella-Ferretti v Ferretti, 74 AD3d 792, 793 [2010]; seeCPLR 3215 [b]; Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]). There isno " 'mandatory ministerial duty' " to enter a default judgment against a defaulting party (Resnick v Lebovitz, 28 AD3d533, 534 [2006], quoting Gagen v Kipany Prods., 289 AD2d 844, 846 [2001]).Instead, the court must determine whether the motion was supported with "enough facts toenable [the] court to determine that a viable cause of action exists" (Woodson v MendonLeasing Corp., 100 NY2d 62, 71 [2003]; see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930,932 [2006]; Beaton v Transit FacilityCorp., 14 AD3d 637 [2005]). "In determining whether the plaintiff has a viable cause ofaction, the court may consider the complaint, affidavits, and affirmations submitted by theplaintiff" (Litvinskiy v MayEntertainment Group, Inc., 44 AD3d 627, [*2]627[2007]).
The Supreme Court properly denied the plaintiff's motion for leave to enter judgment uponthe defendant's default in answering and for an assessment of damages, as the plaintiff's motionpapers failed to set forth sufficient facts to enable the court to determine that there exists a viablecause of action to recover damages for either libel (see Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007]; Rufeh v Schwartz, 50 AD3d 1002,1004 [2008]) or malicious prosecution (see Baker v City of New York, 44 AD3d 977, 979 [2007]; Paisley v Coin Device Corp., 5 AD3d748, 749-750 [2004]). However, the Supreme Court should not have granted the defendant'smotion pursuant to CPLR 3211 (a) to dismiss the complaint as it was not made prior to the timeby which the defendant was required to serve an answer or notice of appearance (seeCPLR 320 [a]; 3211 [e]). Furthermore, the defendant's motion failed to request an extensionof time to answer or appear (see CPLR 2004). In addition, the defendant's motion todismiss the complaint failed to set forth a reasonable excuse for the default, which, along with ashowing of a potentially meritorious defense, is generally necessary to avoid the entry of adefault judgment (see DeStaso vBottiglieri, 52 AD3d 453, 454 [2008]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353,355-356 [2005]).
Under such circumstances, the Supreme Court improvidently exercised its discretion ingranting the defendant's untimely motion to dismiss the complaint, as it, in effect, excused thedefendant's default in the absence of a request for such relief (see May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2010];Zino v Joab Taxi, Inc., 20 AD3d521, 522 [2005]; see also Tirado v Miller, 75 AD3d 153 [2d Dept 2010]).
The parties' remaining contentions are either without merit or improperly raised for the firsttime on appeal. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.