Kostun v Gower

[*1] Kostun v Gower 2009 NY Slip Op 52357(U) [25 Misc 3d 1231(A)] Decided on November 19, 2009 Supreme Court, Broome County Rumsey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2009
Supreme Court, Broome County

Dennis E. Kostun, Plaintiff,

against

David Gower, William Ward, Bradley S. Miles, Laurel Wilcox, Jason Jones, Jennifer M. Cimaomo, Michael Ogden, John Doe and Jane Doe, Defendants.



2003-2052



Hinman, Howard & Kattell, LLP

By:Kimberly Kostun, Esq.

Attorneys for Plaintiff

700 Security Mutual Building

80 Exchange Street

P.O. Box 5250

Binghamton, New York 13902-5250

Law Office of Ronald R. Benjamin

By:Ronald R. Benjamin, Esq.

Attorneys for Defendant, Laurel Wilcox

126 Riverside Drive

Binghamton, New York 13902-0607 Coughlin & Gerhart, LLP

By:Mark L. Rappaport, Esq.

Attorneys for Defendant, Jason Jones

20 Hawley Street, Suite 200 E

Binghamton, New York 13902-2039

Night and Keller

By:William E. Night, Esq.

Attorneys for Defendant, Jennifer M. Cimaomo

The Perry Building, Third Floor

89 Court Street

Binghamton, New York 13901

James M. Barber, Esq.

Attorney for Defendant, Bradley S. Miles

113 Court Street, Ste. 300

Binghamton, New York 13901-3502

Phillip R. Rumsey, J.

Plaintiff commenced this action in 2003 to recover for physical and emotional harm he sustained in an attack in August 2002 which rendered him a paraplegic. By decision and order dated May 21, 2008, this court granted plaintiff a default judgment against defendant Laurel Wilcox on the issue of liability, and denied her cross-motion to dismiss the complaint for plaintiff's failure to take a default within one year. Wilcox did not timely appeal the court's prior order. By motion filed on June 22, 2009, Wilcox now moves for reargument of that order.[FN1]

Plaintiff argues that defendant's motion must be denied because it was not made within 30 days after service of a copy of the order determining the prior motion with notice of entry, as required by CPLR 2221(d)(3). However, every court retains continuing jurisdiction to reconsider its interlocutory orders during the pendency of the action (Liss v Trans Auto Sys., 68 NY2d 15 [1986]). Therefore, "insofar as interlocutory orders are concerned, the statutory time limits are not controlling" (Bray v Gluck, 235 AD2d 72 [1997], lv dismissed 91 NY2d 1002 [1998]). The prior order in this case — which granted default judgment as to liability only, and left the determination of damages for further proceedings — is an interlocutory order (Hartwich v Young, 149 AD2d 762 [1989], lv denied 75 NY2d 701 [1989], rearg denied 75 NY2d 947 [1990]; see also Burke v Crosson, 85 NY2d 10, 17 [1995] [An order resolving all the substantive issues between the parties was "facially nonfinal, since it left pending the assessment of attorneys' fees — a matter that plainly required further judicial action"]). Therefore, the court may consider [*2]defendant's motion to reargue, notwithstanding that it was made long after the statutory deadline had passed.[FN2]

Turning to consideration of defendant's motion to reargue, defendant argues that the court misapprehended the law in granting plaintiff's motion for default judgment made four years after the default. An action is deemed abandoned where a plaintiff has failed to seek a default judgment within one year after the default (CPLR 3215[c]). Under such circumstances, to avoid dismissal of the complaint, a plaintiff must demonstrate that the cause of action is meritorious and provide a reasonable excuse for the delay (id.; Iorizzo v Mattikow, 25 AD3d 762 [2006]). Defendant now argues that such a showing of sufficient cause only operates to save the complaint from dismissal, and that it cannot serve as a basis for the court to award a plaintiff further the further relief of default judgment. She is mistaken. As the court noted in its prior decision and order, a plaintiff may be awarded default judgment upon a showing of sufficient cause that the complaint should not be dismissed (LaValle v Astoria Const. & Paving Corp., 266 AD2d 28 [1999]; see also Iorizzo v Mattikow, 25 AD3d 762 [default judgment granted to plaintiff who did not move for a default judgment until nearly nine years after the default]; Ingenito v Grumman Corp., 192 AD2d 509 [1993]). Thus, defendant has failed to show that the court misapprehended the law, and her motion to reargue is therefore denied (Gibbs v Harp, 46 AD3d 1010 [2007]; cf. Peak v Northway Travel Trailers, 260 AD2d 840 [1999]). [*3]

This decision shall constitute the order of the court. The mailing of copies of this decision and order by the court shall not constitute notice of entry.

Dated: November 19, 2009

Cortland, New York

______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

ENTER Footnotes

Footnote 1: While defendant moves for "reargument or renewal," her sole argument is that the court misapprehended the law in denying her cross-motion and granting plaintiff's motion for default judgment, which is a basis for a motion to reargue (see CPLR 2221[d][2]). She did not submit any new evidence that would support a motion for renewal (see CPLR 2221[e][2]).

Footnote 2: The provision requiring that a motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion with notice of entry was added to CPLR 2221 by amendment in 1999, which was a codification of caselaw requiring that reargument motions be made within the time specified for filing a notice of appeal from the relevant order (e.g., Reape v New York News, 122 AD2d 29 [1986], lv denied 68 NY2d 610 [1986], rearg denied 69 NY2d 707 [1986]). Plaintiff argues that the 1999 amendment eliminated the exception to the 30-day time limit recognized in Liss v Trans Auto Sys., 68 NY2d 15, or, alternatively, that defendant may not rely upon an exception to the statutory rule because she failed to appeal the court's prior order. The 1999 amendment does not restrict the jurisdiction of this court to reconsider its prior interlocutory order granting default judgment as to liability only, even though a notice of appeal was not timely filed by defendant. The Court of Appeals has held that every court retains such jurisdiction "regardless of statutory time limits" (Liss v Trans Auto Sys., 68 NY2d at 20 [emphasis supplied]), a principle which has been upheld since the 1999 amendment (Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636 [2005]; see also Kleinser v Astarita, 61 AD3d 597 [2009] [court retained jurisdiction to grant a belated motion to reargue an interlocutory order which was not appealed]). The Third Department has also held that statutory time limits are not controlling with respect to interlocutory orders — even if no notice of appeal is filed — noting the existence of an additional exception which permits late motions for reargument after timely filing of a notice of appeal (Bray v Gluck, 235 AD2d at 74 [emphasis supplied]; see also Siegel, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:8, 2009 Supp Pamph, at 125; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:8, at 185 [contends that a motion to reargue should be permitted after the 30-day limit has expired, even if no appeal was taken, and that the 1999 amendment does not overrule caselaw which allows for late motions to reargue]).