| Walley v Leatherstocking Healthcare, LLC |
| 2010 NY Slip Op 08840 [79 AD3d 1236] |
| December 2, 2010 |
| Appellate Division, Third Department |
| Linda Walley, as Guardian of the Person and Property of Kylie Walley,Appellant, v Leatherstocking Healthcare, LLC, Respondent. |
—[*1] Martin, Ganotis, Brown, Mould & Currie, P.C., Dewitt (Brian M. Gargano of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredDecember 15, 2009 in Delaware County, which, among other things, granted defendant's cross motionto compel plaintiff to accept its untimely answer.
Plaintiff brought this action to recover for physical injuries suffered by Kylie Walley, an employeeof defendant, as the result of a motor vehicle accident that occurred as Walley was driving home fromwork. Plaintiff commenced the action and effected service on defendant by serving the Secretary ofState on March 25, 2009 (see Business Corporation Law § 306 [b] [1]). Not havingreceived an answer, on May 19, 2009, plaintiff's counsel sent a letter to defendant, accompanied by acopy of the summons and complaint, informing defendant that it was in default and requesting that ananswer be served immediately. On July 6, 2009, plaintiff moved for a default judgment. In September2009, on the day responding motion papers were due, defendant's insurance carrier contacteddefendant's counsel for the first time regarding this matter. Defendant's counsel immediately opposedplaintiff's motion and cross-moved for an order compelling plaintiff to accept defendant's untimelyanswer. Supreme Court denied plaintiff's motion for a default judgment based upon her failure to submitwith her motion an [*2]affidavit of service pursuant to CPLR 3215 (g)(4) (i), and granted defendant's cross motion compelling plaintiff to accept service of the untimelyanswer. Plaintiff now appeals.
Initially, regarding defendant's cross motion, Supreme Court may grant an extension of time toserve an answer "upon a showing of reasonable excuse for delay or default" (CPLR 3012 [d]; see 333 Cherry LLC v Northern Resorts,Inc., 66 AD3d 1176, 1177 [2009]). Here, defendant did not demonstrate a reasonableexcuse for failing to file a timely answer. Defendant claims that the reason for the delay in answeringwas due to the complaint posing "complex and novel questions of insurance coverage and indemnity"resulting in "a bureaucratic process [taking] place in which the claim was the subject of several claimcommittees and resulted in various back and forth dialogue between the defendant and its insurancecarrier as it pertained to the issue of coverage." Defendant's sole support for this claim, however, is anaffidavit from its counsel, who was not hired by the carrier until five months after the complaint hadbeen served and who had no personal knowledge of the actions of either defendant or the carrier priorto plaintiff's motion for a default judgment (see ABS 1200, LLC v Kudriashova, 60 AD3d 1164, 1165-1166[2009]). Inasmuch as defendant based its cross motion on an unsupported claim of insurance carrierdelay, we conclude that defendant did not establish a reasonable excuse for an untimely answer (see Leifer v Pilgreen Corp., 62 AD3d759, 760 [2009]; Martinez vD'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]; Lemberger v Congregation Yetev Lev D'Satmar,Inc., 33 AD3d 671, 672 [2006]). Thus, the court should not have compelled plaintiff toaccept the late answer.
Turning to plaintiff's motion, in order to obtain a default judgment against a corporation which hasbeen served pursuant to Business Corporation Law § 306 (b), "an affidavit shall be submittedthat an additional service of the summons by first class mail has been made upon the defendantcorporation at its last known address at least [20] days before the entry of judgment" (CPLR 3215 [g][4] [i]). Here, the affidavit of plaintiff's counsel on the motion, together with a copy of his May 19, 2009letter, reflect that plaintiff substantially complied with the requirements of the statute when counselmailed an additional copy of the summons and complaint to defendant more than 20 days prior tomoving for a default judgment. Under these circumstances, plaintiff's failure to submit a separateaffidavit of mailing, and the lack of language in the May 19 letter stating that service had previously beenmade pursuant to Business Corporation Law § 306 (b), do not provide a basis for denyingplaintiff's motion (see Lopez v Trucking & Stratford, 299 AD2d 187 [2002]; Crespo vA.D.A. Mgt., 292 AD2d 5, 10 [2002]).
Regardless of plaintiff's compliance with the requirements of CPLR 3215 (g) (4) (i), plaintiff wasnot entitled to a default judgment. "A plaintiff's right to recover upon a defendant's default in answeringis governed by CPLR 3215 . . . which requires that the plaintiff state a viable cause ofaction" (Fappiano v City of New York, 5AD3d 627, 628 [2004], lv denied 4 NY3d 702 [2004]; accord Venturella-Ferretti v Ferretti, 74AD3d 792, 793 [2010]). In evaluating whether plaintiff has fulfilled this obligation, defendant, asthe defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and allreasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 NY2d62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegationsestablish a prima facie case (see Matter of Dyno v Rose, 260 AD2d 694, 698 [1999],appeal dismissed 93 NY2d 998 [1999], lv denied 94 NY2d 753 [1999]). "Where avalid cause of action is not stated, the party moving for judgment is not entitled to the requested relief,even on default" (Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]; see Matter ofDyno v Rose, 260 AD2d at 697-698). Under such circumstances, the court may sua spontedismiss a plaintiff's complaint upon [*3]his or her motion for a defaultjudgment (see Martocci v Bowaskie IceHouse, LLC, 31 AD3d 1021, 1022 [2006], lv dismissed 7 NY3d 916 [2006],cert denied 552 US 918 [2007]).
Pursuant to plaintiff's verified complaint, Walley called defendant on the day of the accident andstated that she was sick and unable to drive in to work. A representative of defendant told Walley thatshe was required to report to work despite her illness and inability to drive. Walley thereafter reportedto defendant's facility and, on her way home after work, was involved in a single-car accident. Thesefacts fail to establish that defendant was negligent or, even if negligence was established, that suchnegligence proximately caused Walley's injuries (cf. Jacobi v Fish, 67 AD3d 1376, 1377 [2009]; compare Schauderv Pfeifer, 173 AD2d 598, 599 [1991]). Plaintiff has therefore failed to state a cause of action.Hence, upon plaintiff's motion for a default judgment, we sua sponte dismiss the complaint (seeMartocci v Bowaskie Ice House, LLC, 31 AD3d at 1022).
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendant's cross motion; cross motiondenied and complaint dismissed; and, as so modified, affirmed.