| Cole-Hatchard v Eggers |
| 2015 NY Slip Op 07466 [132 AD3d 718] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Stephen J. Cole-Hatchard, Appellant, v DickEggers, Respondent, et al., Defendants. (Action No. 1.) Stephen J. Cole-Hatchard,Appellant, v William Sherwood et al., Respondents. (Action No.2.) |
Blank Rome LLP, New York, N.Y. (Michelle Gitlitz Courtney and Rither Alabre ofcounsel), for appellant.
Boeggeman, George & Corde, P.C., White Plains, N.Y. (Daniel E. O'Neill ofcounsel), for respondent William Sherwood in action No. 2.
In two related actions to recover damages for defamation, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Rockland County(Loehr, J.), dated August 14, 2013, as granted those branches of the motion of WilliamSherwood, a defendant in action No. 2, which were to consolidate the actions, in effect,to vacate an order dated August 3, 2011, granting the plaintiff's motion for leave to entera default judgment against the defendant Dick Eggers in action No. 1, and to dismiss thecomplaint in action No. 1, and denied his motion to reschedule, as soon as practicable, aninquest on damages in action No. 1, and for leave to proffer evidence of punitivedamages at the inquest.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting those branches of the motion of William Sherwood which were, in effect, tovacate the order dated August 3, 2011, granting the plaintiff's motion for leave to enter adefault judgment against the defendant Dick Eggers in action No. 1, and to dismiss thecomplaint in action No. 1, and substituting therefor a provision denying those branchesof the motion, (2) by deleting the provision thereof granting that branch of the motion ofWilliam Sherwood which was to consolidate the actions, and substituting therefor aprovision denying that branch of the motion as academic, and (3) by deleting theprovision thereof denying that branch of the plaintiff's motion which was to reschedulethe inquest on damages in action No. 1 as soon as practicable, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofaras appealed from, with one bill of costs to the plaintiff, the order dated August 3, 2011,in action No. 1 is reinstated, and action No. 1 is remitted to the Supreme Court, RocklandCounty, for an inquest on the issue of damages.
[*2] During the plaintiff's campaign for election to a seaton the Stony Point Town Council, Dick Eggers wrote a letter to residents of the Town ofStony Point opposing the plaintiff's candidacy and making certain statements regardingthe plaintiff. On or about May 20, 2011, the plaintiff commenced action No. 1 againstEggers and "John Does 1-5," alleging defamation. Eggers failed to answer the complaintor otherwise appear, and the plaintiff moved for leave to enter a default judgment. Eggersappeared and opposed the motion, and cross-moved for leave to serve a late answer. Inan order dated August 3, 2011 (hereinafter the default order), the Supreme Court (Kelly,J.) granted the plaintiff's motion for leave to enter a default judgment, denied Eggers'cross motion, and scheduled an inquest on damages.
In May 2012, the plaintiff commenced action No. 2 against William Sherwood andothers, alleging that the defendants acted in concert with Eggers in distributing thesubject letter, and seeking to recover damages for defamation. After both cases wereconferenced with a newly assigned justice, the plaintiff moved in action No. 1 toreschedule, as soon as practicable, the inquest on damages, at which he would bepermitted to proffer evidence of punitive damages. Sherwood moved in action No. 2 toconsolidate the actions, in effect, to vacate the default order entered against Dick Eggersin action No. 1, and to dismiss the complaints in both actions. In the order appealed from,the Supreme Court granted Sherwood's motion, consolidated the actions, vacated thedefault order, and directed the dismissal of both complaints. The court also denied theplaintiff's motion. The plaintiff appeals.
Although CPLR 5511 prohibits an appeal from an order entered upon default, thatprovision does not apply where, as here, a party appears and contests a motion for leaveto enter a default judgment (seeSpano v Kline, 50 AD3d 1499 [2008]; Spatz v Bajramoski, 214 AD2d436 [1995]; Spoor-Lasher Co. v J.E.H. Dev. Co., 58 AD2d 646 [1977]). Underthe circumstances, the proper remedies were either an appeal from the default order, atimely motion for reargument or renewal, or an appeal from a judgment entered after theinquest on damages, which would bring up for review the default order (see Clarke vUnited Parcel Serv., 300 AD2d 614, 615 [2002]; see also CPLR 5501 [a] [1];Alam v Alam, 123 AD3d1066, 1067 [2014]; YouniGems Corp. v Bassco Creations Inc., 70 AD3d 454 [2010]; Spano vKline, 50 AD3d at 1499). Thus, a motion to vacate the default order wasprocedurally improper and should not have been entertained (see Clarke v UnitedParcel Serv., 300 AD2d at 615; Robert Marini Bldr. v Rao, 263 AD2d 846,848 [1999]; Pinapati v Pagadala, 244 AD2d 676, 677-678 [1997];Achampong v Weigelt, 240 AD2d 247, 247-248 [1997]). Accordingly, theSupreme Court erred in granting those branches of Sherwood's motion which were, ineffect, to vacate the default order and to dismiss the complaint in action No. 1.
Moreover, the Supreme Court should have granted that branch of the plaintiff'smotion which was to reschedule the inquest on damages in action No. 1. By defaulting inanswering, Eggers admitted the factual allegations of the complaint, including the basicallegation of liability (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730[1984]). Accordingly, action No. 1 should proceed to the inquest on damages, at whichthe Supreme Court should "focus[ ] on the evidence of damages, and award[ ] plaintiffnominal damages, at least" (Taylor v Brooke Towers LLC, 73 AD3d 535, 536[2010]).
However, contrary to the plaintiff's contention, that branch of his motion whichsought leave to proffer evidence of punitive damages at the inquest was properly denied.The complaint in action No. 1 did not seek punitive damages, and the conduct alleged inthe complaint was not "so gross, wanton, or willful, or of such high moral culpability, asto justify an award of punitive damages" (779 E. N.Y. Ave. Assoc., LLC v Gurary, 31 AD3d 627,628 [2006]; see Prozeralik v Capital Cities Communications, 82 NY2d 466,479-480 [1993]; Best Bldg.& Supply Lbr. Corp. v Mastercraft Homes & Renovations, Inc., 39 AD3d788, 790 [2007]).
Since the plaintiff has limited his appeal by, inter alia, not raising any argumentsregarding the dismissal of the complaint in action No. 2, the issue of whether the actionsshould have been consolidated has been rendered academic (see Marcum, LLP v Silva, 117AD3d 917, 919 [2014]; Nassau Point Prop. Owners Assn., Inc. v Tirado, 29 AD3d754, 757 [2006]). Chambers, J.P., Dickerson, Hall and Hinds-Radix, JJ.,concur.