| Liberty County Mut. v Avenue I Med., P.C. |
| 2015 NY Slip Op 04815 [129 AD3d 783] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Liberty County Mutual et al.,Appellants, v Avenue I Medical, P.C., et al., Respondents, et al.,Defendants. |
Freiberg, Peck & Kang LLP, Armonk, N.Y. (Nicole R. McErlean of counsel),for appellants.
Daniel F. Lynch, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for fraud and for a judgment declaringthat the plaintiffs are not obligated to pay pending and future no-fault insurance claimssubmitted by the defendant Avenue I Medical, P.C., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.),dated February 28, 2014, as denied that branch of their motion which was pursuant toCPLR 3215 for leave to enter a judgment against the defendants Avenue I Medical, P.C.,Ricardo Galdamez, P.C., and Roman Vladmirovich Vaynshteyn, D.C., upon their failureto timely "answer or move" in accordance with a stipulation, and thereupon extended thetime for those defendants to serve their answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiffs' motion which was for leave to enter a judgment against thedefendants Avenue I Medical, P.C., Ricardo Galdamez, P.C., and Roman VladmirovichVaynshteyn, D.C., upon their failure to timely "answer or move" in accordance with thesubject stipulation is granted, and the matter is remitted to the Supreme Court, SuffolkCounty, for an inquest on damages with respect to those defendants, additional furtherproceedings consistent herewith, and the entry of an appropriate judgment thereafter,inter alia, declaring that the plaintiffs are not obligated to pay pending and future no-faultinsurance claims submitted to them by the defendant Avenue I Medical, P.C.
On June 14, 2013, the plaintiffs commenced this action in the Supreme Court,Suffolk County, and thereafter served a copy of the summons and complaint on all thedefendants. None of them timely answered or appeared. On September 6, 2013, theplaintiffs entered into a stipulation with the defendants Avenue I Medical, P.C., RicardoGaldamez, P.C., and Roman Vladmirovich Vaynshteyn, D.C. (hereinafter collectively therespondents), pursuant to which the respondents acknowledged that they had been"lawfully served" and waived any jurisdictional defenses, but not their right to move fora change of venue. The stipulation also extended the respondents' time to "answer ormove" to the close of business on September 13, 2013. The respondents neither answerednor "move[d]" by September 13, 2013, but, instead, on that date, served a demand tochange venue from Suffolk County to Kings County (see CPLR 511). OnSeptember 26, 2013, they [*2]moved, in the SupremeCourt, Kings County, to change venue accordingly. The next day, the plaintiffs moved inthe Supreme Court, Suffolk County, for leave to enter a default judgment against all ofthe defendants. As relevant here, the Supreme Court denied the plaintiffs' motion withrespect to the respondents, and the plaintiffs appeal.
A plaintiff seeking leave to enter a default judgment under CPLR 3215 must fileproof of: (1) service of a copy or copies of the summons and the complaint, (2) the factsconstituting the claim, and (3) the defendant's default (see CPLR 3215 [f]; Fried v Jacob Holding, Inc.,110 AD3d 56, 59-60 [2013]). To defeat a facially sufficient CPLR 3215 motion, adefendant must show either that there was no default, or that it had a reasonable excusefor its delay and a potentially meritorious defense (see Fried v Jacob Holding,Inc., 110 AD3d at 60). Here, the respondents do not contend that the plaintiffs'motion was facially insufficient. Instead, they contend that, by serving a demand tochange venue on September 13, 2013, and subsequently moving for a change of venue,they complied with the terms of the stipulation and, thus, had not defaulted. We disagree.The stipulation clearly stated that the respondents were to "answer or move" bySeptember 13, 2013. The respondents' demand for a change of venue was neither ananswer nor a motion. Thus, the respondents did not establish that they had not defaulted(see Jaffery v MacMillan & Webb Enters., Inc., 27 AD3d 422, 422[2006]). Moreover, their misinterpretation of the clear terms of the stipulation did notconstitute a reasonable excuse for their default (cf. DiIorio v Antonelli, 240AD2d 537, 537 [1997]) and, even if such a misinterpretation could be considered areasonable excuse, the respondents failed to demonstrate that they had a potentiallymeritorious defense to the action. Accordingly, the Supreme Court erred in denying thatbranch of the plaintiffs' motion pursuant to CPLR 3215 which was for leave to enter adefault judgment against the respondents (see Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d1102, 1102 [2009]; Giovanelli v Rivera, 23 AD3d 616, 616-617 [2005];Meeker v Moore, 160 AD2d 780, 781 [1990]).
To the extent that the plaintiffs raise an argument regarding that branch of theirmotion which was addressed to the defendant IVD, Inc., that branch of the motion wasnot addressed by the Supreme Court in the decretal paragraph of the order appealed from,and therefore remains pending and undecided (see Katz v Katz, 68 AD2d 536,542-543 [1979]).
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that theplaintiffs are not obligated to pay pending and future no-fault insurance claims submittedto them by the defendant Avenue I Medical, P.C. (see Lanza v Wagner, 11 NY2d317 [1962]). Mastro, J.P., Balkin, Sgroi and Duffy, JJ., concur.