| Gershman v Ahmad |
| 2015 NY Slip Op 06884 [131 AD3d 1104] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Lizaveta Gershman, Appellant, v SammeyAhmad et al., Defendants, and Billiard Balls Management, LLC, Doing Business asSlate, Respondent. |
Law Firm of Albert Cohen, P.C., Forest Hills, N.Y. (Charles Haviv of counsel), forappellant.
Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Stephanie Gallo, Leslie G. Abele, andEdward Haynes of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Bayne, J.), dated May 7, 2014, which deniedher motion for leave to enter judgment on the issue of liability against the defendantBilliard Balls Management, LLC, doing business as Slate, upon its failure to answer thecomplaint, and granted that defendant's cross motion to compel her to accept late serviceof its answer.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the plaintiff's motion for leave to enter judgment on the issue of liability as againstthe defendant Billiard Balls Management, LLC, doing business as Slate, is granted, andthat defendant's cross motion to compel the plaintiff to accept late service of its answer isdenied.
On February 5, 2012, the plaintiff allegedly was injured while she was a passenger ina vehicle operated by the defendant Sammey Ahmad, when he lost control of the vehicle,striking light poles and a tree. As relevant to the instant appeal, the plaintiff alleges thatthe defendant Billiard Balls Management, LLC, doing business as Slate (hereinafterBilliard), violated the Dram Shop Act (General Obligations Law § 11-101)by selling alcoholic beverages to Sammey Ahmad while he was visibly intoxicated.
In September 2012, the plaintiff commenced this action by filing a summons andverified complaint. Billiard was served via the New York Secretary of State. Thereafter,two extensions of time to answer the complaint were stipulated to by the plaintiff'scounsel and a law firm that the plaintiff's counsel believed represented Billiard.Approximately nine months after the last stipulated extension of time for Billiard toanswer had expired, the plaintiff, having not received an answer, moved for leave toenter a judgment against Billiard. Approximately one month later, Billiard, representedby a law firm different from that which stipulated to the extensions, opposed theplaintiff's motion, and cross-moved to compel acceptance of its proposed answer. TheSupreme Court denied the plaintiff's motion and granted Billiard's cross motion. Theplaintiff appeals. We reverse.
[*2] The SupremeCourt should have granted the plaintiff's motion for leave to enter judgment againstBilliard, as she submitted proof of (a) proper service of the summons and complaint, (b)the facts constituting her claim, by virtue of a complaint verified by the plaintiff, and (c)Billiard's default in answering the complaint (see CPLR 3215 [f]; SDK Prop. One, LLC vQPI-XXXII, LLC, 116 AD3d 835 [2014]; Diederich v Wetzel, 112 AD3d 883 [2013]; Triangle Props. # 2, LLC vNarang, 73 AD3d 1030 [2010]). Contrary to Billiard's argument, the plaintiffdid not need to demonstrate her compliance with the additional notice requirement ofCPLR 3215 (g) (4). By its express terms, the notice requirement is limited to situationswhere a default judgment is sought against a "domestic or authorized foreigncorporation" which has been served pursuant to Business Corporation Law§ 306 (b), and does not pertain to a limited liability company such asBilliard (CPLR 3215 [g] [4] [i]; see McKinney's Cons Laws of NY, Book 1,Statutes § 240; Confidential Lending, LLC v Nurse, 120 AD3d 739, 742[2014]).
A defendant who has failed to timely appear or answer the complaint must provide areasonable excuse for the default and demonstrate the existence of a potentiallymeritorious defense to the action in order to avoid the entry of a default judgment(see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d 138, 141 [1986]; Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015];Cervini v Cisco Gen. Constr.,Inc., 123 AD3d 1077 [2014]). A defendant who moves to compel the plaintiff toaccept late service of an answer pursuant to CPLR 3012 (d) is required to make a similarshowing (see Citimortgage, Inc.v Stover, 124 AD3d 575 [2015]; Mannino Dev., Inc. v Linares, 117 AD3d 995 [2014]; Maspeth Fed. Sav. & LoanAssn. v McGown, 77 AD3d 889 [2010]).
The determination of what constitutes a reasonable excuse lies within the SupremeCourt's discretion (see White vIncorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]). "Whether aproffered excuse is 'reasonable' is a 'sui generis determination to be made by the courtbased on all relevant factors, including the extent of the delay, whether there has beenprejudice to the opposing party, whether there has been willfulness, and the strong publicpolicy in favor of resolving cases on the merits' " (Fried v Jacob Holding, Inc.,110 AD3d 56, 60 [2013], quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877[2005]; see Oller v LibertyLines Tr., Inc., 111 AD3d 903, 904 [2013]; Moore v Day, 55 AD3d 803, 804 [2008]).
Here, Billiard failed to provide a reasonable excuse for its approximately 10-monthdelay in answering. While Billiard's general manager, Jimmy Fok, averred in an affidavitthat he forwarded a copy of the complaint to Billiard's insurance carrier, he alsoacknowledged that he was aware that coverage was disclaimed and that the disclaimercame "after the assignment of counsel but before an answer was interposed," duringwhich time "efforts were made to have the disclaimer withdrawn." The disclaimer wasissued on December 28, 2012, and the time within which Billiard was required to answerhad been extended by one of the stipulations until January 11, 2013. While Fok averredthat Billiard did not attempt "to avoid interposing an Answer," he acknowledged that hedid nothing with regard to interposing an answer until after the motion for leave to enterjudgment had been served by the plaintiff, at which time there was still an approximately30-day delay between the service of the motion and the date of the verified answer. Thus,the delay was not attributable to insurance carrier delay (see Fried v Jacob Holding,Inc., 110 AD3d 56, 60-61 [2013]), but rather, resulted from Billiard's attemptsand negotiations to alter the outcome of its insurance carrier's disclaimer. Under thesecircumstances, we find the excuse for Billiard's default unreasonable (see Jackson v Professional Transp.Corp., 81 AD3d 602, 603 [2011]; Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d790 [2006]; Lemberger vCongregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]; Gainey v Anorzej, 25 AD3d650, 651 [2006]).
In any event, Billiard failed to demonstrate that it had a potentially meritoriousdefense. The Fok affidavit did not address the merits of any defense, and the proposedanswer was verified by counsel, who had no personal knowledge of the facts (see Gross v Kail, 70 AD3d997 [2010]; Baldwin vMateogarcia, 57 AD3d 594, 594-595 [2008]; Bekker v Fleischman, 35AD3d 334 [2006];Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]). WhileBilliard's counsel contended that a triable issue of fact existed as to whether there wasviolation of the Dram Shop Act, this, without more, does not demonstrate a potentiallymeritorious defense (see King vKing, 99 AD3d 672, 673 [2012]; Baldwin v Mateogarcia, 57 AD3d 594, 594-595 [2008]; see also Dodge v Commander,18 AD3d 943 [2005]; [*3]Bishop v Galasso,67 AD2d 753 [1979]).
Accordingly, since Billiard failed to demonstrate a reasonable excuse for its failure toanswer and, in any event, failed to demonstrate a potentially meritorious defense, theSupreme Court improvidently exercised its discretion in denying the plaintiff's motionfor leave to enter judgment against Billiard and in granting Billiard's cross motion tocompel the plaintiff to accept its late answer. Dillon, J.P., Leventhal, Cohen and Maltese,JJ., concur.