Dixon v Globe Realty of NY, Inc.
Annotate this CaseDecided on June 30, 2006
Supreme Court, Kings County
Lindley Dixon, Plaintiff,
against
Globe Realty Of New York, Inc., et al, Defendants.
38954/02
David Schmidt, J.
Upon the foregoing papers, defendant Peter J. Burgess Management Corp. (Burgess) moves, by way of order to show cause, for an order: (a) staying the execution and enforcement of plaintiff's October 29, 2005 judgment against Burgess, as well as various restraining notices and an information subpoena; (b) declaring an offset of the judgment against Burgess; and (c) vacating the September 20, 2005 inquest and corresponding $50,000 award to plaintiff, or in the alternative, compelling plaintiff to disclose evidence in support of the award.
In this personal injury action, plaintiff Lindley Dixon (Dixon) seeks to recover damages for injuries he received on July 1, 2002 when plaintiff tripped and fell over forms used to replace a concrete patio in the backyard of the apartment he rented from defendant [*2]Globe Realty of New York (Globe Realty). Burgess was the property manager which had hired Mario's Construction Corp. (Mario's Construction) to make patio repairs. When Burgess failed to serve an answer, plaintiff moved for a default judgment, which motion was granted by order of this court, dated September 12, 2003. An inquest was scheduled at the time of trial. Thereafter, the plaintiff's claims against the remaining defendants (with the exception of Mario's Construction, which also failed to answer or appear) were either dismissed or settled and, by order dated April 20, 2005, plaintiff was directed to proceed to inquest against the defaulting defendants on the issue of damages. At the September 20, 2005 inquest, $50,000 was awarded to plaintiff. After receiving a copy of the judgment with notice of entry, Burgess moved to vacate the default judgment, which application was denied by the court on January 27, 2006. Burgess subsequently brings the present motion, by order to show cause. Such order to show cause contains a temporary restraining order enjoining plaintiff from taking any steps to enforce the judgment.
Defendant argues that under General Obligations Law § 15-108(a) and CPLR 4545, it is entitled to a setoff in the amount of $18,750, which sum Globe Realty paid plaintiff in settlement of plaintiff's claims against the settling defendant. Defendant also argues that, since plaintiff is required to prove alleged damages even when a defendant has defaulted, plaintiff should be compelled to disclose evidence to support the $50,000 award. In opposition, plaintiff argues that defendant's motion should be denied because it is an impermissible and untimely second post-trial motion brought under CPLR 4404(a). Plaintiff also contends that defendant is precluded from requesting an offset under both General Obligations Law § 15-108(a) and CPLR 4545 because, as a defaulting defendant, it failed to plead such statutes as affirmative defenses.
The court rejects plaintiff's contention that defendant's motion is an impermissible and untimely second post-trial motion under CPLR 4404. Although CPLR 4406 requires a party to bring only one post-trial motion, defendant clearly brought its previous motion to vacate the default judgment pursuant to CPLR 5015(a)(1), rather than CPLR 4404. In addition, there is an open legal question as to whether CPLR 4405, which requires a post-trial motion to be made within 15 days of verdict or decision, applies in a defendant's post-trial motion where liability isn't challenged (Loperena v City of New York, 2002 NY Slip Op 40435 [Sup Ct, New York County 2002]). Regardless, under CPLR 2004 the court has discretion to extend statutory time limits such as those set forth in CPLR 4405 (see Siegel, NY Prac § 405, Ch. 15 [4th ed.]; Haig, 4 NY Prac Com Lit in New York State Courts § 47:18 [2d ed]). The court has the discretion, particularly in nonjury trials, to abandon or extend time limits in the interests of justice (Dobert Constr. Corp v Dan Holser Excavating, Inc., 36 AD2d 1002; Matter of Alison VV, 211 AD2d 988). Accordingly, in the absence of any prejudice to plaintiff, the court considers the merits of defendant's motion.
Where a personal injury action involves several defendants and one defendant settles while the action proceeds to judgment against the remaining defendants, under General Obligations Law § 15-108(a), the non-settling defendants are entitled to a reduction that is the greater of: (1) the settling defendant's equitable share of the damages awarded; (2) the [*3]stipulated amount of the settlement; or (3) the amount actually paid by the settling defendant (Whalen v Kawasaki Motors Corp., 92 NY2d 288 [1998]). Under CPLR 4545, defendants are entitled to mitigate any damages by offering evidence that such damages have been or will be reduced by a collateral source (Stein v Levine, 8 AD3d 652 [2004]).
The court finds that, as a defaulting defendant, General Obligations Law § 15-108(a) and CPLR 4545 are unavailable to Burgess. While a court may consider evidence regarding a set off during an inquest on damages, "the particular setoff under NY Gen. Oblig. Law 15-108(a) is unavailable to defaulting defendants" (Sniadach v Gonzalez, 191 Misc 2d 422 [2001]). The set-off under this statute is an affirmative defense that must be pleaded (id. at 424; Whalen v Kawasaki Motors Corp., 92 NY2d 288 [1998]; J.A. Valenti Electric Co., Inc. v Power Line Constructors, Inc., 123 AD2d 604 [1986]). Similarly, the application for a collateral source offset under CPLR 4545 must be pleaded as an affirmative defense (Stein v Levine, 8 AD3d 652 [2004]; Wooten v State of New York, 302 AD2d 70 [2002]). The offset would likely take the plaintiff by surprise, considering that he most likely entered into the settlement with defendant Globe Realty under the rational belief that defendants defaulted and therefore would not be entitled to offsets under General Obligations Law § 15-108(a) or CPLR 4545.
Lastly, the court denies defendant's remaining contention that plaintiff must again disclose evidence in support of the $50,000 that he was awarded at inquest. A plaintiff must prove actual damages that it sustained, even in the case where a defendant has defaulted (Goldstein v Sandavid Enterprises, Inc., 286 AD2d 221 [2001]; Paulson v Kotsilimbas, 124 AD2d 513 [1986]). Here, during the inquest, plaintiff proved the allegations in his complaint by submitting various medical bills and by testifying as to the need for future medical attention. Accordingly, the court finds the amount awarded on defendant's default judgment reasonable, and will not disturb the judgment. Had defendant wished to contest damages at the inquest, it should have appeared therein and raised its present contentions. By failing to appear at the inquest (of which it had timely notice), Burgess has waived its claims for a set-off (see generally Bernstein v Burson, 141 AD2d 794 [1988]).
To recapitulate, the motion by defendant Burgess is denied in its entirety and the temporary restraining order, dated April 4, 2006, is hereby vacated.
This constitutes the decision and order of this court.
E N T E R
J. S. C.
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