| Gerster's Triple E. Towing & Repair, Inc. v Pishon Trucking,LLC |
| 2018 NY Slip Op 08979 [167 AD3d 1353] |
| December 27, 2018 |
| Appellate Division, Third Department |
[*1]
| Gerster's Triple E. Towing and Repair, Inc.,Respondent, v Pishon Trucking, LLC, et al., Appellants. |
Umoh Law Firm, PLLC, New York City (Uwem Umoh of counsel), for appellants.
Saunders Kahler, LLP, Utica (Merritt S. Locke of counsel), for respondent.
Mulvey, J. Appeal from an order of the Supreme Court (Burns, J.), entered March 27, 2017in Delaware County, which, among other things, partially granted plaintiff's motion for summaryjudgment.
In November 2013, a tractor trailer operated by defendant Pishon Trucking, LLC and ownedby defendant Biniam Ghebreselassie was traveling on an interstate highway in the Town ofPrincetown, Delaware County when it slipped in the snowy conditions and went off the road. Thecargo, cases of peanut butter, spilled onto the road, requiring a partial closure of the road. TheState Police contacted plaintiff, its authorized towing company, which brought a crew andequipment to clear the road and remove the tractor trailer and its cargo to a storage facility. Upondefendants' failure to pay plaintiff's invoiced bill for the cleanup, towing and storage, plaintiffcommenced this action by amended complaint with summons filed in July 2014 alleging causesof action in services rendered, quantum meruit and implied contract. Plaintiff sought $55,946.78for its services and ongoing storage fees less credit for the lien proceeds from the sale of thetractor trailer. In September 2014, on defendants' motion, the action was removed to the USDistrict Court for the Northern District of Texas, which found that venue was improper andremanded it to the Northern District of New York which, in turn, found that there was no basisfor federal jurisdiction over the complaint and remanded the action to Supreme Court on June 2,2016.
Although no answer had been filed, plaintiff moved for summary judgment in August 2016and, in November 2016, defendants cross-moved for a continuance and for permission to file alate motion to dismiss the complaint. Supreme Court partially granted plaintiff's motion byawarding it summary judgment on liability on the second and third causes of action. The courtdenied defendants' cross motion. Defendants now appeal.
Supreme Court erred in granting plaintiff summary judgment because defendants never filedan answer and, thus, issue was not joined, a prerequisite that is "strictly adhered to" (City ofRochester v Chiarella, 65 NY2d 92, 101 [1985]; accord Cremosa Food Co., LLC v Amella, 164 AD3d 1300, 1300[2018]; see CPLR 3212 [a]; JBBNY, LLC v Begum, 156 AD3d 769, 770 [2017]; Pilatich v Town of New Baltimore, 100AD3d 1248, 1250 [2012]; Stainless Broadcasting Co. v Clear Channel BroadcastingLicenses, L.P., 58 AD3d 1010, 1012 [2009]). Further, summary judgment was not grantedhere pursuant to CPLR 3211 (c).[FN1] Even if defendants are deemed to haveappeared by filing a notice of removal of the action to federal court or by other conduct(see CPLR 320 [a]), they did not file a responsive pleading (see CPLR 3011) and,consequently, plaintiff was barred from seeking summary judgment (see CPLR 3212 [a];JBBNY, LLC v Begum, 156 AD3d at 770-771; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d653, 653 [2010]).
However, we find no error in Supreme Court's denial of defendants' cross motion. To begin,contrary to defendants' claims on appeal, their cross motion did not request permission to file alate answer and no proposed answer was attached. Rather, the cross motion only sought acontinuance and permission to file a late, pre-answer motion to dismiss.[FN2] Moreover, the action, commenced in July 2014,was remanded to Supreme Court on June 2, 2016, and defendants took no action to file either ananswer or any motions until after plaintiff moved for summary judgment in August 2016, waitinguntil November 2016 to make their cross motion. Even if, as defendants argue, the remandproceedings tolled their time to file responsive pleadings or a motion to dismiss, defendantsfailed to thereafter timely serve an answer (see CPLR 3012) or to move to dismiss withinthat time (see CPLR 3211 [e]).
Although Supreme Court possessed discretion to permit late service of an answer "upon ashowing of [a] reasonable excuse for [the] delay or default" (CPLR 3012 [d]; see Bank of N.Y. Mellon v Jinks, 127AD3d 1367, 1368 [2015]), the reasonableness of the excuse "is a discretionary, sui generisdetermination to be made by the court based on all relevant factors" (Puchner v Nastke, 91 AD3d 1261,1262 [2012] [internal quotation marks and citations omitted]). A November 26, 2016 affidavit insupport of the cross motion from defendants' counsel, who did not have personal knowledge ofmany of the allegations in the complaint, was the only affidavit submitted in support of that crossmotion. Counsel merely conclusorily averred that Pishon's chief executive officer was out of thecountry "since late August or early September" and that counsel had been "unable to reach him."Even if credited, that assertion would not explain defendants' failure to submit a timelyresponsive pleading or pre-answer motion after the June 2, 2016 remand. We discern no basis forfinding that Supreme Court abused its discretion in denying defendants' motion, given theabsence of a reasonable excuse for the delay (see CPLR 3012 [d]; 2004; HSBC Bank USA, N.A. v Ashley, 104AD3d 975, 976 [2013], lv dismissed 21 NY3d 956 [2013]; compare Loughran v Giannoti, 160AD3d 709, 710 [2018]; Bank of N.Y. Mellon v Jinks, 127 AD3d at 1368-1369).
Accordingly, given that defendants are precluded from answering the complaint, the mattermust be remitted to Supreme Court to afford plaintiff an opportunity to make a late motion for adefault judgment or for the parties to apply for any other relief they deem advisable, matters onwhich we take no position (see CPLR 2004; 3215; Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 962-963 [2018];Artcorp Inc. v Citirich Realty Corp.,140 AD3d 417, 417-418 [2016]; Dayco Mech. Servs., Inc. v Toscani, 94 AD3d 1214, 1214-1215[2012]; see also HSBC Bank USA, N.A.v Seidner, 159 AD3d 1035, 1035-1036 [2018]; Wells Fargo Bank, N.A. v Cafasso, 158 AD3d 848, 849 [2018]; Fuentes v Hoffman, 118 AD3d1324, 1325-1326 [2014]).
Devine, J.P., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as partially granted plaintiff's motion forsummary judgment; motion denied and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1:Although a court may convert amotion to dismiss to a motion for summary judgment prior to joinder of issue (see CPLR3211 [c]), Supreme Court plainly did not do so here. Rather, the court denied defendants' motionto file a late motion to dismiss and did not convert that motion to one for summary judgment;further, the court only addressed the merits of plaintiff's improper pre-answer summary judgmentmotion (see CPLR 3211 [c]; Matter of Dashnaw v Town of Peru, 111 AD3d 1222, 1223-1224[2013]; see also Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).
Footnote 2:Defendants' motion specificallyrequested a "continuance to file [a] motion to dismiss," an "extension of time to file [a] motion todismiss" and an "extension of time to refile [a] motion to dismiss." The reference to refilingstems from the assertion that defendants had moved to dismiss the complaint in federal court, amotion that was reportedly denied as moot before the action was remanded to Supreme Court.