| Pipinias v J. Sackaris & Sons, Inc. |
| 2014 NY Slip Op 02419 [116 AD3d 749] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Ioannis Pipinias, Respondent, v J. Sackaris &Sons, Inc., et al., Appellants. |
—[*1] Coffinas Law Firm, PLLC, New City, N.Y. (Lawrence B. Goodman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Bunyan, J.), dated December 5, 2012, as denied their motion, inter alia, to dismiss thecomplaint as abandoned pursuant to CPLR 3215 (c), and granted those branches of theplaintiff's cross motion which were, in effect, to extend his time to file proof of service asto the defendant Lawrence Mirro, nunc pro tunc, to the date upon which such proof ofservice was actually filed, and to direct the defendants to appear and answer.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1)by deleting the provision thereof denying that branch of the defendants' motion whichwas to dismiss the complaint insofar as asserted against the defendant J. Sackaris & Sons,Inc., as abandoned pursuant to CPLR 3215 (c), and substituting therefor a provisiongranting that branch of the motion, and (2) by deleting the provision thereof granting thatbranch of the plaintiff's cross motion which was to direct the defendant J. Sackaris &Sons, Inc., to appear and answer, and substituting therefor a provision denying thatbranch of the plaintiff's cross motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff commenced this action to recover damages for personal injuries inDecember 2002. By service of an order to show cause dated August 21, 2012, thedefendants moved, inter alia, to dismiss the complaint as abandoned pursuant to CPLR3215 (c).
CPLR 3215 (c) provides, with regard to default judgments, in pertinent part, that"[i]f the plaintiff fails to take proceedings for the entry of judgment within one year afterthe default, the court shall not enter judgment but shall dismiss the complaint asabandoned, without costs, upon its own initiative or on motion, unless sufficient cause isshown why the complaint should not be [*2]dismissed."
With regard to the defendant Lawrence Mirro, the defendants contend, and theplaintiff concedes, that proof of service of the summons and complaint was not filedwithin 20 days of service as required by CPLR 308 (2). The plaintiff correctly asserts thatsince the late filing of proof of service as to Mirro was a nullity and Mirro's time toanswer never began to run, the plaintiff therefore could not have previously obtained adefault judgment against Mirro and the provisions of CPLR 3215 (c) do not apply as toMirro (see Paracha v County of Nassau, 228 AD2d 422, 424 [1996]; see also Zareef v Lin Wong,61 AD3d 749, 749 [2009]; Bank of New York v Schwab, 97 AD2d 450, 450[1983]). Although the plaintiff raises this issue for the first time on appeal, it involves aquestion of law that appears on the face of the record which could not have been avoidedif brought to the attention of the Supreme Court at the appropriate juncture (see Guy v Hatsis, 107 AD3d671, 671-672 [2013]; Byrne v Nicosia, 104 AD3d 717, 719 [2013]; Muniz v Mount Sinai Hosp. ofQueens, 91 AD3d 612, 618 [2012]; Needleman v Tornheim, 88 AD3d 773, 774 [2011]).Accordingly, we reach this issue. Since Mirro's time to answer never began to run andthe plaintiff could not have obtained a default judgment against him, as to Mirro, theprovisions of CPLR 3215 (c) do not apply. Accordingly, the Supreme Court properlydenied that branch of the defendants' motion which was to dismiss the complaint insofaras asserted against Mirro as abandoned pursuant to CPLR 3215 (c), and properly grantedthat branch of the plaintiff's cross motion which was to direct Mirro to appear andanswer.
There is no dispute concerning the filing of proof of service on the defendant J.Sackaris & Sons, Inc. (hereinafter Sackaris). "The language of CPLR 3215 (c) is not, inthe first instance, discretionary, but mandatory, inasmuch as courts 'shall' dismiss claims(CPLR 3215 [c]) for which default judgments are not sought within the requisiteone-year period, as those claims are then deemed abandoned" (Giglio v NTIMP, Inc., 86AD3d 301, 307-308 [2011]; see Butindaro v Grinberg, 57 AD3d 932 [2008]; DuBois v Roslyn Natl. Mtge.Corp., 52 AD3d 564, 565 [2008]; County of Nassau v Chmela, 45 AD3d 722, 722 [2007]; Kay Waterproofing Corp. v RayRealty Fulton, Inc., 23 AD3d 624, 625 [2005]). "The one exception to theotherwise mandatory language of CPLR 3215 (c) is that the failure to timely seek adefault on an unanswered complaint or counterclaim may be excused if 'sufficient causeis shown why the complaint should not be dismissed' " (Giglio v NTIMP, Inc., 86AD3d at 308, quoting CPLR 3215 [c]). "This Court has interpreted this language asrequiring both a reasonable excuse for the delay in timely moving for a default judgment,plus a demonstration that the cause of action is potentially meritorious" (Giglio vNTIMP, Inc., 86 AD3d at 308; see Ryant v Bullock, 77 AD3d 811, 811 [2010]; Solano v Castro, 72 AD3d932, 932-933 [2010]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71AD3d 653, 653 [2010]; Sicurella v 111 Chelsea, LLC, 67 AD3d 996, 996 [2009];DuBois v Roslyn Natl. Mtge. Corp., 52 AD3d at 565; County of Nassau vChmela, 45 AD3d at 722; Durr v New York Community Hosp., 43 AD3d 388, 389[2007]; Costello v Reilly,36 AD3d 581, 581 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton,Inc., 23 AD3d at 625; London v Iceland Inc., 306 AD2d 517, 517 [2003])."The determination of whether an excuse is reasonable in any given instance iscommitted to the sound discretion of the motion court" (Giglio v NTIMP, Inc.,86 AD3d at 308; see Staples vJeff Hunt Devs., Inc., 56 AD3d 459, 460 [2008]; Costello v Reilly, 36AD3d at 581; Ewart v Maimonides Med. Ctr., 239 AD2d 543, 544 [1997]).However, "[a]lthough the determination of what constitutes a reasonable excuse lieswithin the sound discretion of the Supreme Court, reversal is warranted if that discretionis improvidently exercised" (Butindaro v Grinberg, 57 AD3d at 932; seeStaples v Jeff Hunt Devs., Inc., 56 AD3d at 460; McHenry v Miguel, 54 AD3d 912, 913 [2008]).
Here, the plaintiff failed to move for a default judgment for approximately 9½years between Sackaris's default in appearing or answering and the plaintiff's September2012 cross motion. The plaintiff's claims concerning proceedings in a prior federal actioninvolving these parties based on the same claims, including the discovery conducted inconnection therewith, and the plaintiff's understanding as to the parties' intentions oncethe federal action was discontinued and this action was commenced, did not constitute areasonable excuse for the delay. Moreover, while law office failure, also raised by theplaintiff, may be accepted as a reasonable excuse for a delay in taking action, " 'lawoffice failure should not be excused . . . where allegations of law officefailure are conclusory and unsubstantiated' " (Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790[2011], quoting Star Indus., Inc.v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]). Under thecircumstances of this case, the plaintiff failed to establish a reasonable excuse for hisextensive delay [*3]in moving for a default judgmentagainst Sackaris. Accordingly, the Supreme Court should have granted that branch of thedefendants' motion which was to dismiss the complaint insofar as asserted againstSackaris as abandoned pursuant to CPLR 3215 (c), and should have denied that branchof the plaintiff's cross motion which was to direct Sackaris to appear and answer,regardless of whether the plaintiff established that the action was potentially meritorious.
A plaintiff's delay in filing proof of service is a mere procedural irregularity whichmay be corrected by an order of the court permitting late filing of proof of service (see Discover Bank vEschwege, 71 AD3d 1413, 1414 [2010]; Zareef v Lin Wong, 61 AD3dat 749; Hausknecht v Ackerman, 242 AD2d 604, 606 [1997]; Paracha vCounty of Nassau, 228 AD2d 422 [1996]; Rosato v Ricciardi, 174 AD2d937, 937-938 [1991]; Bank of New York v Schwab, 97 AD2d at 450;Haegeland v Massa, 75 AD2d 864 [1980]; see also CPLR 2004 [extensionsof time generally]; Weininger v Sassower, 204 AD2d 715, 716 [1994]). Underthe circumstances of this case, the Supreme Court providently exercised its discretion ingranting that branch of the plaintiff's cross motion which was, in effect, to extend histime to file proof of service as to Mirro, nunc pro tunc, to the date upon which such proofof service was actually filed and directing that defendant to appear and answer within 30days of the date of the order (see Hausknecht v Ackerman, 242 AD2d at 606).
The parties' remaining contentions are improperly raised for the first time on appeal,are without merit, or need not be reached in light of our determination. Dillon, J.P.,Dickerson, Cohen and Hinds-Radix, JJ., concur.