Kovitz v Greenfield

[*1] Kovitz v Greenfield 2005 NY Slip Op 51868(U) [10 Misc 3d 126(A)] Decided on November 18, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: NOVEMBER 18, 2005 November 2004 Term McCooe, J.P., Davis, Gangel-Jacob, JJ.


Philip Kovitz, Plaintiff-Appellant, NY County Clerk's No. 570819/03

against

Paul Greenfield, Calendar No. 04-313 Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered October 8, 2002, which denied his motion for entry of a default judgment.

PER CURIAM:

Order (Eileen A. Rakower, J.), entered October 2, 2002, affirmed, without costs.

The summons and complaint in this action seeking damages for defamation was served in November 1995. Defendant served an answer and discovery ensued. The case remained dormant until May 2002, when plaintiff, who lost part of his file, moved to compel defendant to supply him with a copy of his answer or in the alternative to strike the answer. By order entered June 17, 2004, the court directed defendant to provide plaintiff with a copy of the answer within 20 days. When plaintiff did not receive the answer, he moved, inter alia, to deem defendant in default, arguing that the failure to supply the answer was willful and contumacious. Defendant opposed the motion, stating that he could not locate a copy of the complaint or answer, and plaintiff had refused to provide a copy of the complaint. Defendant obtained a copy of the complaint from the clerk's office, prepared a new answer and served it upon plaintiff. A copy of the new answer with proof of service was submitted by defendant as an exhibit below. The court denied plaintiff's motion.

The court did not abuse its discretion in denying plaintiff's motion to deem defendant in default where defendant's failure to comply with the June 17, 2004 order was not willful or contumacious (see e.g. Deleon v Sonin & Genis, 303 AD2d 291 [2003]; Fischbach & Moore, Inc. V Skyline Construction Management, Inc., 293 AD2d 390 [2002]). Defendant, who explained that he was unable to timely comply with the court order due to his inability to locate the pleadings, made diligent efforts to comply with the court's directive and ultimately provided [*2]plaintiff with a "replacement" answer for the one that neither side could locate after years of plaintiff's own inaction in prosecuting his claim.

This constitutes the decision and order of the court.
Decision Date: November 18, 2005