| Taveras v City of New York |
| 2013 NY Slip Op 05199 [108 AD3d 614] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Arjelia M. Taveras et al., Respondents, v City ofNew York et al., Appellants. |
—[*1] Codelia & Socorro, P.C., Bronx, N.Y. (Peter R. Shipman of counsel), forrespondents.
In an action, inter alia, to recover damages for wrongful death, etc., the defendantsappeal from an order of the Supreme Court, Kings County (Velasquez, J.), datedSeptember 2, 2011, which denied their motion for summary judgment dismissing thecomplaint or, alternatively, pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against the defendants Lifeguard Ilienko and Lifeguard RicardoSewell for lack of personal jurisdiction, and pursuant to CPLR 3215 (c) to dismiss thecomplaint insofar as asserted against the defendant Detective James O'Malley asabandoned.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' motion which was pursuant to CPLR 3215 (c) todismiss the complaint insofar as asserted against the defendant Detective JamesO'Malley, and substituting therefor a provision granting that branch of the defendants'motion; as so modified, the order is affirmed, without costs or disbursements.
On June 12, 2005, Luis Alberto Peralta, also known as Luis A. Peralta Taveras(hereinafter the decedent), drowned while swimming at the public ocean beach at ConeyIsland in Brooklyn. In August 2006, the plaintiffs, the administrators of the decedent'sestate, commenced this action to recover damages, inter alia, for wrongful death againstthe City of New York, Lifeguard John Doe No.1, Lifeguard John Doe No.2, and PoliceOfficer John Doe. After the City answered the complaint, in December 2008, theplaintiffs served upon the City a notice of substitution pursuant to CPLR 1024substituting as defendants Lifeguard Ilienko, Lifeguard Ricardo Sewell, and DetectiveJames O'Malley in place of the John Doe defendants. Along with that notice, theplaintiffs provided to the City a summons and amended complaint, dated December 1,2008, reflecting the substitution. According to an affidavit of service, the amendedpleadings were served upon O'Malley on February 7, 2009, by personal service. Ilienkoand Sewell appeared for depositions on August 20, 2009. No answers were served onbehalf of any of the individual defendants.
The defendants moved for summary judgment dismissing the complaint or,alternatively, pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst Ilienko and Sewell for lack of personal jurisdiction, and pursuant to CPLR 3215(c) to dismiss the [*2]complaint insofar as assertedagainst O'Malley as abandoned. The Supreme Court denied the defendants' motion.
While a municipality is not an insurer of the safety of those who use its parks (seeCurcio v City of New York, 275 NY 20, 23 [1937]), it does have a duty to maintainits parks in a "reasonably safe condition," which includes exercising ordinary care inproviding "an adequate degree of general supervision" (Caldwell v Village of Is.Park, 304 NY 268, 273 [1952]; see Williams v City of New York, 71 AD3d 1135, 1137[2010]). Here, the defendants established their prima facie entitlement to judgment as amatter of law by submitting evidence demonstrating that the City provided experiencedlifeguards to supervise the bathers and that the search for the decedent was performedpursuant to the New York City Department of Parks and Recreation's Beach Safety Plan(see Curcio v City of New York, 275 NY at 24; Bumpher v County ofWestchester, 300 AD2d 525, 526 [2002]).
However, in opposition, the plaintiffs raised triable issues of fact as to whether thelifeguards in attendance at the time of the incident were inattentive or inefficient, andwhether the delay in commencing a search for the decedent was a proximate cause of thedecedent's death. The defendants contend that the deposition testimony of an eyewitnessto the incident that two other members of her party reported the decedent being indistress to the lifeguards before she reported him being in distress, with one of thosereports allegedly having been made 45 minutes before the eyewitness's report, wasinadmissible hearsay insufficient to defeat their motion. The Supreme Court, however,properly considered that eyewitness's testimony, which was submitted to the court by theplaintiffs. Although hearsay evidence is insufficient to defeat a motion for summaryjudgment if it is the only evidence submitted (see Silva v FC Beekman Assoc., LLC, 92 AD3d 754, 756[2012]; Roche v Bryant, 81AD3d 707, 708 [2011]; Roldan v New York Univ., 81 AD3d 625, 627 [2011]; Stock v Otis El. Co., 52 AD3d816, 816-817 [2008]), here, the majority of the eyewitness's testimony was based onher personal observations and, therefore, was not hearsay. The witness testified that thedecedent was in apparent distress around 1:00 p.m. when he went under the waterwithout resurfacing, that one of the lifeguards remained on his stand talking to a group offemales while the decedent could be observed struggling in the water, that the firstlifeguard did not enter the water when the eyewitness informed him that the decedentwas in distress, that a second lifeguard who finally entered the water on a board failed topaddle out to where the decedent was last observed before returning to shore, that adistress call was not signaled and the water evacuated until the eyewitness informed athird lifeguard that the decedent was in distress, and that a linked search by about 10lifeguards was not performed until more than one hour after she initially observed thedecedent in distress, which eventually led to the discovery of the decedent around 3:00 or3:30 p.m. The eyewitness's testimony that one of her friends initially told the firstlifeguard that a person was in distress about 45 minutes before the eyewitness spoke tohim constituted hearsay, since the eyewitness was not present when that report was madeto the first lifeguard. However, that testimony was properly considered, since it was notthe only evidence submitted in opposition to the defendants' motion. Thus, the SupremeCourt properly denied that branch of the defendants' motion which was for summaryjudgment dismissing the complaint.
Moreover, the Supreme Court properly denied that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst Ilienko and Sewell for lack of personal jurisdiction. CPLR 1024 allows for thecommencement of an action against an unknown party (see generally Orchard ParkCent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467 [1976]).While the use of a John Doe designation does not exempt a plaintiff from therequirement of serving process on the intended defendant by an authorized method underCPLR article 3 (see generallyBumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2009]), a defendant mayappear informally by actively litigating the action before the court (see Henderson vHenderson, 247 NY 428 [1928]; Taylor v Taylor, 64 AD2d 592 [1978]).When a defendant participates in a lawsuit on the merits, he or she indicates an intentionto submit to the court's jurisdiction over the action, and by appearing informally in thismanner, the defendant confers in personam jurisdiction on the court (see Rubino vCity of New York, 145 AD2d 285 [1989]). Thus, absent a formal "appearance" by adefendant, a defendant may nevertheless appear in an action where his or her counselcommunicates a clear intent to participate (see Pendergrast v St. Mary's Hosp.,156 AD2d 436 [1989]).[*3]
Here, it is undisputed that Ilienko and Sewellwere never served with process. The plaintiffs contend that the defendants' attorneyagreed to appear for Ilienko and Sewell and, as a result, they neither personally servedthe summons and amended complaint upon Ilienko and Sewell, nor moved for leave toenter a default judgment against them. The record establishes that, during the depositionsof Ilienko and Sewell, the defendants' counsel appeared on their behalf. Moreover,during the plaintiffs' counsel's questioning of Ilienko about the examination he took tobecome a City lifeguard, the defendants' counsel stated that the negligent hiring,retention, and training claims would fail in this instance because, "when the city takes aposition to represent employees for acts that occurred during the course of theiremployment . . . the only issue that goes to the jury is negligence on the dayof the incident." Consequently, Ilienko's and Sewell's participation in this action and theircounsel's statements confirming that he was appearing on their behalf subsequent to thesubstitution constituted an informal appearance on their behalf and a waiver of anyobjection to personal jurisdiction (see Finn v Church for the Art of Living, Inc., 90 AD3d826, 827 [2011]; USF&G v Maggiore, 299 AD2d 341, 343 [2002]; seealso Rubino v City of New York, 145 AD2d at 287-288; McGowan vBellanger, 32 AD2d 293, 295 [1969]).
However, with respect to O'Malley, the record establishes that, after he was servedwith process on February 7, 2009, the plaintiffs took no steps to seek leave to enter adefault judgment against him even though he failed to answer the complaint or otherwiseappear in the action. Where, as here, a plaintiff fails to seek leave to enter a defaultjudgment within one year after the default has occurred, the action is deemed abandoned(see CPLR 3215 [c]; Solano v Castro, 72 AD3d 932 [2010]; Butindaro v Grinberg, 57AD3d 932 [2008]; Countyof Nassau v Chmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d624, 625 [2005]). To avoid dismissal of the complaint pursuant to CPLR 3215 (c)insofar as asserted against O'Malley, the plaintiffs were required to demonstrate both areasonable excuse for their delay in seeking a default judgment and that the complaint,insofar as asserted against O'Malley, was potentially meritorious (see Shinn v City of New York,65 AD3d 621, 622-623 [2009]; Butindaro v Grinberg, 57 AD3d 932 [2008]; Staples v Jeff Hunt Devs., Inc.,56 AD3d 459 [2008]; Mattera v Capric, 54 AD3d 827, 828 [2008]). Here, theplaintiffs failed to demonstrate either.
Accordingly, the Supreme Court should have granted that branch of the defendants'motion which was pursuant to CPLR 3215 (c) to dismiss the complaint insofar asasserted against O'Malley as abandoned. Dillon, J.P., Austin, Sgroi and Cohen, JJ.,concur.