Taylor v City of New York

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Taylor v City of New York 2002 NY Slip Op 30078(U) January 29, 2002 Supreme Court, New York County Docket Number: 0110490/2001 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1 ] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: $ ~ 4 g $ ~&&JH !p&z* - NEW YORK /~oS/40/0/ 1-3-i;L MOTION DATE -vMOTION SEQ. NO. were read on this motion W f o r i!-cq I Notice of Motion/ Order to Show Cause - Affidavits Answering Affidavits - Exhibits - Exhibits ... 0 / 0 ~ ,I - 1; L. T..rc-u J PAPERS NUMBERED I I I Replying Affidavits f I PART Justice INDEX NO. The following papers, numbered 1 t o COUNTY F q ! 2 1 2002 .__- f w 0 2 F$ 2 Dated: Check one: [? [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 11 _____________________-__-__----_----_--ANDRIAN TAYLOR and KIM E. WILLIAMS, X Index No. 110490/01 Plaintiffs, -againstCITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT and ROBERT D. S P I E R S , _ _ _ _ _ _ _ _ _ _ _ _ _Defendants. - - - - - _ - - - -X - - _ - _ - - - - _ _______ Joan A. Madden, J. In this negligence action arising out of a motor vehicle accident, plaintiffs move for a default judgment against defendant Robert D. Spiers ("Spiers"). Defendant, the City of an amended answer in which it appeared on behalf of Spiers, opposes the motion. For the reasons set forth below, the motion is denied, and the City is granted permission, nunc pro tunc, to serve the amended answer. Plaintiff Adrian Taylor ("Taylor")' alleges that he was injured on March 17, 2000, at approximately 3 : O O a.m. when a fire truck driven by Spiers, a firefighter employed by the City, went through a red light at a 1 3 l S t and Lenox Avenue in Manhattan and hit Taylor's vehicle without warning. the complaint. The City timely answered In contrast, plaintiffs submit proof that Spiers 'Plaintiff Kim E. Williams seeks damages for loss of services. 1 [* 3 ] failed to answer and/or appear even though he was served with the summons and complaint pursuant to CPLR 3 0 8 ( 2 ) by service on a coworker on May 23, 2001, and by first-class mail on May 25, 2001. Plaintiffs submit a letter dated June 13, 2001, to the Corporation Counsel requesting that an answer be served within five days of the date of the letter or plaintiffs would serve a motion for a default judgment. No answer was served on behalf of Spiers, and on or about August 31, 2001, plaintiffs made this motion for an order entering a default judgment against Spiers in the amount of $3 million or, alternatively, setting the matter down for an inquest. On November 15, 2001, while the motion was pending in the submissions part, plaintiffs received a copy of the City s amended answer in which it answered on behalf of Spiers. At oral argument, the City provided the court with opposition papers and plaintiffs objected to the submission as untimely. Plaintiffs argue that the City s amended answer is a nullity as it was served after the time to answer had expired on July 1, 2001, and the City did not seek permission from the court prior to serving the amended answer. Plaintiffs also note that in their opposition papers, the City has failed to include an affidavit of merits. In opposition, the City asserts that any delay in responding to plaintiffs motion was the result of the World Trade Center 2 [* 4 ] tragedy on September 12, 2001, and that their service of the amended answer renders the plaintiffs motion moot. While the court does not condone the City s conduct in this matter, the circumstances here are such that plaintiffs should be required to accept the late amended answer. CPLR 3012(d) authorizes the court to compel the acceptance of an untimely pleading upon showing of reasonable excuse for the delay or the default. Sackman Mortaaqe Corp v 111 West 95thRealtv CorD., Dept 1989). 152 AD2d 463 ( l s t Here, the events of September 11, 2001, provide a reasonable excuse for the City s delay in assessing whether to answer for the defendant fire fighter. Moreover, while the City has not provided and affidavit of merits, the relatively short delay in answering and the reasonable excuse given for the delay, warrants this court s exercise of its inherent power in the interest of justice to favor [providing the defendant] an opportunity to defend and have a disposition on the merits. Goracv v Burns, Brooks & McNeil, 155 AD2d 256 ( l s tDept 1989) (citation omitted). Accordingly in view of the above, it is ORDERED that plaintiffs motion for an order granting a default judgment against defendant Spiers or, alternatively, setting this matter down for an inquest is denied; and it is further ORDERED that plaintiffs are ordered to accept service of the 3 [* 5 ] amended answer nunc pro tunc; and it is further ORDERED that any reply to the amended answer shall be served within 20 days of entry of this decision and order. This constitutes the decision and DATED: January 4

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