Stridiron v Jacob's Ladder Realty, L.L.C.

[*1] Stridiron v Jacob's Ladder Realty, L.L.C. 2006 NY Slip Op 52682(U) [22 Misc 3d 1114(A)] Decided on January 6, 2006 Supreme Court, Bronx County Friedlander, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2006
Supreme Court, Bronx County

Angele Stridiron and THEODORO PINERO, Plaintiff(s),

against

Jacob's Ladder Realty, L.L.C., REGEIS CARE CENTER, HOME FOR THE AGED OF THE LITTLE SISTERS OF THE POOR OF THE CITY OF NEW YORK, OTIS ELEVATOR COMPANY, ROBERT VERTICAL TRANSPORTATION, INC., MORGAN VERTICAL CONSULTANTS, INC., ROBERT ELEVATOR CO., INC., ROBERT ELEVATOR INDUSTRIES, INC., and ROBERT J. MORGAN, Defendant(s).



8050/04

Mark Friedlander, J.

Third Party Defendants Robert Vertical Transportation, Inc., Morgan Vertical Consultants, Inc., Robert Elevator Company, Inc., Robert Elevator Industries, Inc., and Robert J. Morgan (collectively "the Robert Defendants" or "movants") move for leave to reargue the previous decision of this Court granting the motion of Third Party Plaintiff Otis Elevator Company ("Otis") for entry of a default judgment against the Robert Defendants.

This action arises out of personal injuries allegedly sustained, on September 14, 2003, by Plaintiffs at or near an elevator at the premises occupied by Defendant Regeis Care Center [*2]("Regeis"). As nearly as can be made out from the papers submitted, the premises may have been managed or supervised by Defendant Home for the Aged of the Little Sisters of the Poor of the City of New York ("HALSP"), and owned by Defendant Jacob's Ladder Realty, LLC ("JLR"), and the elevator in question may have been serviced or repaired by Defendant Otis. Plaintiffs initially brought their action against Regeis, HALSP, JLR and Otis, without naming or serving the Robert Defendants. Plaintiffs' action was initiated in February 2004.

In September 2004, Otis commenced a third party action against the Robert Defendants, seeking judgment over, apportionment of damages and contractual indemnification, on the ground that any defect in the elevator that caused Plaintiffs' injuries would have been a result of repairs or maintenance by the Robert Defendants, and that the Robert Defendants, when they sold their assets to Otis, contracted to indemnify Otis for any claims relating to the periods of operation by the sellers. The Robert Defendants failed to answer the third party complaint, leading to a motion by Otis, brought on by Order to Show Cause signed on May 10, 2005, seeking entry of a default judgment. The Robert Defendants opposed the motion , and brought a cross-motion seeking leave to file their answer.

Otis' application was ultimately granted by a decision of this Court, dated August 12, 2005, which found that the Robert Defendants had conceded their default, but had failed to offer an adequate excuse for the seven-month-long failure to answer, and had failed to provide an affidavit of merits by a party with knowledge of the facts. Settlement of an order was directed. A proposed order was submitted by Otis (and objected to by the Robert Defendants) but, prior to the signing of any order, the instant re-argument motion was served.

The Robert Defendants, who are now the movants on the instant application, purport to seek re-argument (the notice of motion contains no reference to renewal), but refer, throughout their papers, to new facts which this Court needs to consider.

I. Movants' Unavailing Arguments.

The arguments set forth by movants are without merit and, with one notable exception (discussed infra) do not serve to persuade the Court that the previous decision should be changed. In no case do movants show that an issue of law or fact was misapprehended by the Court in the issuance of the earlier decision. In fact, in most instances, the motion to reargue is so repetitive and haphazardly drafted as to make it exceedingly difficult to follow (See, inter alia, page 4, lines 4-5, of the affirmation in support and page 7, line 2. What is "judicious acrimony", and what can it possibly signify in the context of this application?). After some struggle with the text of the application, the Court will respond to those arguments that can be discerned.

Movants suggest that Otis' earlier default motion was devoid of an affidavit of merits. This is not the case, as an affidavit of Jaimi Derisi, an employee of Otis with knowledge of the facts, was attached to the motion. Movants at the same time argue that the affidavit of merits submitted by Otis was untrue or misleading, because it allegedly omitted certain facts that would have supported the position of movants. This latter argument, however, is an attempt to argue movants' ultimate position and could be entertained only if movants had NOT defaulted and had earned the right to defend on the merits. Movants' attacks (through their attorney) on the presentation of facts in Otis' affidavit of merits cannot be heard in the context of a motion to re-open a default.

Movants further argue that their default was somehow caused by the failure of Otis to [*3]provide them certain records in advance of their answering. There is no merit to this contention and, in any event, there is no showing that the lack of such records precluded service of an answer. Movants similarly attempt to relitigate the issue (decided in the earlier default motion) of what contacts were initiated by Otis in an effort to elicit an answer. In this effort, movants raise no new factual or legal points. Aside from the fact that the additional efforts by Otis were not required by the CPLR, it is not the function of this re-argument motion to revisit arguments already raised and rejected on the earlier motion. Movants have not indicated any manner in which the earlier rejection by the Court of these arguments is a result of a misapprehension of some fact not earlier considered.

II. Impact of Plaintiffs' Amended Complaint.

Movants argue at length that there is now an amended complaint, in which Plaintiffs have added the Robert Defendants as direct defendants. Movants offer this as a new state of affairs, despite the fact that the amended complaint is dated September 29, 2004 (it was obviously drafted in response to the third party action) and was served on the parties early enough so that the caption of Otis' motion for default (in May 2005) already lists movants as direct defendants. It is thus inexplicable that movants did not raise this argument in the context of the earlier default motion.

(At the time of the previous default motion, the Court was not made aware of who was served with the amended complaint, and who had responded, while, in contrast, on this application, the more recent posture of the main action is set forth below).

Despite the fact that movants do not have the procedural right to belatedly raise the issue of the amended complaint, this Court, in the exercise of discretion, will explore the significance of Plaintiffs' amendment, as it has impact on the result reached here.

The exhibits submitted on this motion, taken together, show that the Robert Defendants have answered Plaintiffs' amended complaint, and, in their answer, have asserted a cross-claim against Otis. Otis has replied to the cross-claim, setting forth a general denial and asserting affirmative defenses, including the barring of the cross-claim by reason of the default in the third party action, by reason of collateral estoppel, and by reason of laches. Otis has not served a cross-claim upon the Robert Defendants, presumably because it relies on the third party complaint for the interposing of such claim. Despite the above, the motion to reargue twice asserts falsely (pp. 3 and 6) that Otis has asserted a cross-claim against the Robert Defendants, and then admits (p. 12) that it has not.

Movants first argue that Otis can no longer take a default, because it signed a stipulation in the now-amended main action (negotiated as a result of motions heard in the discovery part of the court) which, inter alia, provided a deadline for the Robert Defendants to serve their answer to the amended complaint. This argument has no validity. Whatever agreement Otis made before Justice Tuitt of this Court related only to the amended main action, and not to Otis' rights, such as they are, in the third party action.

Movants next argue that the third party action will be dismissed, pursuant to CPLR 3211(a)(4), because there is another, pre-existing action with the same parties and claims. This is a mis-statement, in that the third party action pre-dates the amended complaint and thus is not subject to CPLR 3211(a)(4). Movants also argue that there is no prejudice to Otis, because other defendants have gotten long extensions of their time to answer, and some are only now [*4]answering in the main action. Thus, there is no delay or other prejudice in permitting a late answer by movants. Otis attempts to respond to this argument, but is unpersuasive in showing any prejudice. Nevertheless, the rules do not require a showing of prejudice, where a lengthy failure to answer has resulted in a default motion.

Finally, movants raise, albeit in a confused fashion, the argument that the combination of their default with their cross-claim against Otis can result in mischief, by either: 1) allowing Otis to take disadvantageous positions at trial, knowing that Otis will eventually force movants to pay any amounts assessed against it; or 2) causing inconsistent results, by which a jury can find for movants and against Otis on movants' cross-claim, but the default will still cause Otis to collect from movants. It is this latter scenario, imperfectly articulated in the instant motion, which movants incongruously call "judicious acrimony". The first scenario is the automatic result of any default situation, in which one defendant is precluded from mounting a defense and another defendant is not. It is the second scenario which is more troubling.

Otis' reply to movants' cross-claims asserts a defense of collateral estoppel, but it is clear that the default judgment which Otis seeks to invoke as a basis for its estoppel is not a result reached on the merits. Thus, although movants' cross-claim is premised on the mirror image of the precise claims asserted by Otis in the third party action, there remains the possibility that a jury could find for movants and against Otis on the cross-claim, causing a conflict with any default judgment in the opposite direction to be entered in the third party action.

In its opposition to the instant motion, Otis asserts that the amendment to the complaint in the main action does not affect the third party action, but Otis offers no support for its declaration of this principle, and such argument is not persuasive. In fact, the reconfiguration of the main action brought about by Plaintiffs' amendment of their complaint has created a situation (by bringing all defendants, including movants, into the main action) whereby the third party action is, in truth, a cross-claim. Although there is no direct support for the proposition that the third party action automatically collapses into the main action, it would seem that such should be the logical result, and the Court should move to bring it about.

III. Conclusions.

Therefore, for reasons of judicial economy and in the interests of justice, the Court, in the exercise of discretion, directs that the third party action be deemed a cross-claim in the main action, and the caption be amended to delete the third party action, as its claims are now incorporated into the main action.

Returning for a moment to the afore-described concern over possibly inconsistent results as to the cross-claims between these defendants, it could be argued that the spectre of such inconsistent result would be obviated by the simple step of precluding the cross-claims of the Robert Defendants, based on their earlier default in the third party action (as Otis demands in some of its affirmative defenses to the cross-claim against it). However, Otis has not cited, and the Court does not find, any authority specifically mandating such a result. The better course, as a matter of public policy and in the interest of deciding matters on their merits, would be to disassociate what occurred at the stage of the earlier third party action from the current, amended main action.

Therefore, in the interests of justice, the transformation of the third party action into a cross-claim, is deemed the starting point for the running of the period for movants' response [*5]thereto. The former third party action by Otis is deemed "a cross-claim that contains a demand for an answer", within the meaning of CPLR 3011, and movants are given thirty days from service of this Order, with notice of entry, to serve a response to the Otis "cross-claim".

It need not be belabored that the strong preference of the judicial system is for resolution on the merits, and, where possible, a basis for such resolution should be found. While the papers submitted by the Robert Defendants on the previous default motion were devoid of any basis for justifying a resolution on the merits (and the instant submission is little better), the action by Plaintiff in bringing all the parties together as defendants has served to provide a basis for reviving the opportunity of all defendants to litigate against one another on the merits. Despite themselves, movants are saved from default. As indicated, supra, no convincing case has been made that Otis will suffer any prejudice whatsoever from this result. (For what it is worth, it is also noted that movants served their "answer with cross-claim against Otis" shortly before the Otis default motion was granted, although the Court did not know of such cross-claim at the time).

One other aspect of this situation needs to be addressed. In some respects, the opposition papers served by Otis are almost as disappointing as the moving papers. Otis engages in needless invective, at some points calling the actions and arguments of movants "nefarious " and even "disgusting", although there is absolutely no basis therefore. Otis refers to movants as having engaged in default games, and having willfully defaulted, but there is no hint of any motive for such irrational conduct on movants' part. The Court is not provided with the slightest reason to believe that movants had anything to gain, or believed they had anything to gain, from defaulting. Rather, it seems from all that has been said and shown to date, that such default as occurred resulted from incompetence, lack of understanding or some possible lack of communication (between client, counsel and insurer). There is no venality attributable to movants, and a result which finds a basis to allow their claims to be heard on the merits clearly serves the interests of justice.

Thus, by reason of the foregoing, despite the patent lacunae in movants' submissions, the Court finds, on review of the entire file, that, in the interests of judicial economy, the third party action is hereby converted to a cross-claim in the main action, and, in the interests of justice, movants are granted thirty days following service upon them of this Order with notice of entry, to serve their response to the cross-claim (formerly third party complaint) of Otis.

The proposed default order submitted by Otis, and the objections thereto submitted by the Robert Defendants, are thus rendered moot. The instant motion is granted only to the extent indicated above.

This constitutes the Decision and Order of the Court.

Dated: __January 6, 2006________________________________

Mark Friedlander, J.S.C.