Levy v Endicott

[*1] Levy v Endicott 2009 NY Slip Op 52651(U) [26 Misc 3d 1203(A)] Decided on December 30, 2009 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2009
Supreme Court, New York County

Harriet Levy, as Personal Representative of the Estate of ROBERT M. LEVY, deceased, , Plaintiff,

against

Robin Endicott, as Personal Representative of the Estate of JENNIE TOBIN a/k/a JENNIE ENDICOTT and JAMES KILCULLEN, Defendants.



30684/92



For Petitioner:

Richard S. Last, Esq.

Foreht Last Landau & Katz

New York, NY

For Defendant:

Alan Kestenbaum, Esq.

Weil & Kestenbaum

Bayside, NY

Walter B. Tolub, J.

By this motion, plaintiff moves for an order pursuant to CPLR 2221 granting leave to re-argue this court's July 29, 2008 decision, and, upon re-argument, for an order reversing the portion of the aforementioned order which vacated the default judgment taken against co-defendant Jennie Tobin in June of 1993, and dismissed the action against her for failure to [*2]comply with the provisions of now-repealed CPLR § 306-b.[FN1]

The portion of the motion seeking leave to re-argue is granted.

Success on a motion to reargue requires a demonstration that in arriving at its earlier decision, the court either overlooked or misapprehended the facts or the law or, somehow mistakenly arrived at its conclusion (CPLR 2221(d)(2); Foley v. Roche, 68 AD2d 558, 567 [1st Dept 1979]; Schneider v Solowey, 141 AD2d 813 [2nd Dept 1988]; Pahl Equipment Corp. v. Kassis, 182 AD2d 22, 27 [1st Dept 1992]).

The issue plaintiff seeks to readdress concerns service of process under the then-newly enacted rules of commencement by filing, and the pre-1998 requirement that within 120 days of filing initiatory papers and paying the requisite fee, plaintiff had to serve the defendant, and file proof of service with the clerk of the court in order to properly commence an action (CPLR 306-b, McKinney's 1992, 1993). This issue provides the court with a unique opportunity to discuss some of the nuances of commencement by filing, and, to address the still-vexing question with respect as to who, for the purposes of filing documents, is the appropriate Clerk of Court for New York County.[FN2] [*3]

Plaintiff, as noted in this court's July 29, 2008 decision, commenced the instant action on November 19, 1992 by Notice of Motion for Summary Judgment in Lieu of Complaint (Kilcullen Order to Show Cause, Exhibit C). At the time that plaintiff commenced this action, the State of New York had just introduced commencement by filing in the Supreme and County Court.[FN3] What that meant for plaintiff, is that in order to commence this action, plaintiff initially had to: (1)file the proper initiatory papers, and (2) pay the fee necessary to obtain the required index number (CPLR § 304). Plaintiff then had 120 days in which to serve defendants and file proof of service pursuant to now-repealed CPLR § 306-b (see, Matter of Gershel v. Porr, 89 NY2d 327 [1996]).

There is no question that in the instant action, plaintiff purchased an index number and obtained a Request for Judicial Intervention (County Clerk File). What happened after these were obtained however, becomes a bit murkier.

For starters, not withstanding plaintiff's claims that both defendants were properly served in this action, the affidavits of service for both defendant Tobin and defendant Kilcullen are, to put it mildly, riddled with what appear to be scriveners errors and inconsistencies (Notice of Motion to Reargue, Exhibit 3). For example, none of the affidavits of service appear to actually reflect defendant Tobin's then valid address, although they do each contain at least one of the names of defendant Tobin's sons (id.). The affidavit of service of process for defendant Kilcullen, sworn to on October 14, 1993, claimed that the motion papers had been served on December 22, 1992 (id.). The process server in that same sworn affidavit, stated that on December 22, [*4]1992 he confirmed that defendant Kilcullen was not an active member of the Military by speaking with Harold Endicott, who died on October 15, 1992 (id.).

Setting aside the problems noticed in the affidavits of service which are part of the motion papers and file, and, for the purposes of this motion, accepting their validity, there is the more complicated question of whether or not the affidavits of service were properly filed with the Court.

When this matter was originally presented, review of the file and submitted papers quickly resolved this question with respect to defendant James Kilcullen. Plaintiff's original motion papers were only accompanied by an affidavit of service for defendant Jennie Tobin. An affidavit of service for defendant Kilcullen was not filed until October 22, 1993. Since the applicable 120-day period involved in this action would have run by the middle of March of 2003, by the time plaintiff filed the affidavit of service for defendant Kilcullen, dismissal of the action, which was self-executing, had already occurred (CPLR 306-b(a) [McKinney's 1992]; see also Antoine v. Patel, 268 AD2d 546 [2nd Dept 2000]).

Plaintiff however, argues that this court erred when it arrived at the same conclusion, i.e., that plaintiff had failed to file proof of service upon defendant Tobin before the expiration of the 120-day period. Plaintiff supports this argument by asserting that the affidavit of service was annexed to the motion, and the motion was filed in November 1992. Plaintiff further claims that because the affidavit of service was annexed to the motion, not only did it not have a separate filing stamp, "it did not need one" (Affirmation in Opposition ¶3).

The back cover affixed to the motion papers that were filed in 1992, indeed bears two distinct stamps. One is an "IAS Part ___ Papers submitted" stamp dated November 23, 1992. A second stamp also appears on the back cover of the motion papers, indicating that the papers had been filed with the County Clerk's office on July 26, 2003 (Affirmation in Opposition, Exhibit B; Reply Affirmation, Exhibit 1).

The question this court must now wrestle with, is whether the November 23, 1992 "IAS Part ___ Papers submitted" stamp demonstrates that the affidavit of service in this action was timely filed.

The term, "filed with the Clerk of the Court" as it pertains to the commencement by filing requirements (see, CPLR § 304), has long been the source of great consternation and conflicting [*5]decisions in this State.[FN4] In its simplest sense, filing takes place when the appropriate clerk actually receives the papers (Barr Altman, Lipshie and Gerstman; New York Civil Practice Before Trial [James Publishing 2009] §3:73).

The problem of course, as evinced by litigation, decisions, and volumes of commentary, is determining who the appropriate clerk actually is.

The Court of Appeals noted in 2002, that although the term "clerk of court" is not defined in the CPLR, it is defined by the State Constitution, which provides that County Clerks shall be the Clerks of the Supreme Court (In the Matter of Mendon Ponds Neighborhood Association v. Dehm, 98 NY2d 745, 747 [2002], citing New York State Constitution Article VI §6(e); County Law §525(1)). Mendon Ponds, and its progeny, however, are not applicable to this case.

Mendon Ponds presented a case involving a situation where plaintiff's lawyer had purchased an index number from the Monroe County Clerk, and then filed the papers in that action, a notice of petition and petition, with the office of the Chief Clerk of the Monroe County Supreme Court. The Court of Appeals held that no action had been commenced because the papers were filed with the wrong clerk: plaintiff filed with the Chief Clerk of the Supreme Court, rather than the County Clerk, who, by definition, was the Clerk of the Court for Monroe County.

The instant action, however, was not commenced in Monroe County. It was brought here, in New York County, where the New York County Clerk wears not one, but two, hats. Stated differently, the County Clerk in New York County also serves as the Clerk of the Supreme Court New York County. Clerks deputized by the County Clerk in New York County, are therefore authorized to accept papers for filing. As such, plaintiff's motion papers which contained the affidavit of service for defendant Jennie Tobin, were timely filed as of November 23, 1992. This court's prior decision on this particular issue is now vacated to the extent of finding that the filing of the affidavit of service as it pertained to defendant Tobin was timely. The July 2008 decision is also reversed as to the declaration that the 1993 judgment filed against defendant Tobin was void as being a nullity, and the 1993 judgment is reinstated solely as to defendant Tobin.

The court must now necessarily turn to the original motion first advanced by defendant Tobin in 2007, which sought an order pursuant to CPLR § 5015(a)(4) vacating the default judgment taken [*6]against her in July of 1993 and entered on October 22, 1993.

A necessary requirement for obtaining relief from judgment under CPLR § 5015 is the demonstration of a valid excuse for the default and a meritorious defense (CPLR § 5015). Notwithstanding the delays in this case, the papers presented in the instant application raise a multitude of issues concerning whether or not defendant Tobin was properly served in accordance with CPLR § 308. Since "it is well settled that where service of process has been improperly effected, any resulting default judgment is a nullity" (DeMartino v. Rivera, 148 AD2d 568, 569 [2nd Dept. 1989]), a traverse hearing is warranted. Plaintiff's motion to vacate the default judgment is therefore held in abeyance pending a traverse hearing.

Accordingly, it is

ORDERED that plaintiff's motion to renew and reargue this court's July 29, 2008 decision and order is granted; and upon reargument, it is further

ORDERED that the portion of this court's July 29, 2008 decision which vacated the 1993 judgment issued in this action by Hon. Beatrice Shainswit, is vacated to the extent indicated in this decision; and it is further

ORDERED that the portion of this court's July 29, 2008 decision which determined that plaintiff's filing of the affidavit of service as to defendant Tobin is similarly vacated in accordance with the above decision; and it is further

ORDERED that the issue of proper service of process upon defendant Jennie Tobin is referred to a Special Referee to conduct a traverse hearing and to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further

ORDERED, that the portions of this motion relating to vacatur of the default is held in abeyance pending receipt of the report and recommendations of the Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the Special Referee or designated referee; and it is further

ORDERED that a copy of this order with notice of entry shall be served upon the Clerk of the Judicial Support Office (Room 311, 60 Centre Street, New York, New York) to arrange for a date for the reference to a Special Referee; and it is further

ORDERED, that pending the final determination by this Court of the issue of service upon Defendant Tobin, the plaintiff and/or its agents, assigns or employees are hereby restrained from taking any steps to enforce a judgment previously entered against her in this action and are restrained from taking any steps to physically levy upon her property in connection with any [*7]Marshal's Notice served in this action.

This memorandum opinion constitutes the decision and order of the Court.

Dated: 12/30/2009

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: As of July 1, 1992, CPLR 306-b(a), read as follows:

§ 306-b. Filing proof of service in an action commenced in supreme or county court

(a) Proof of service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be filed with the clerk of the court within one hundred twenty days after the date of filing the summons and complaint, summons with notice or third-party summons and complaint, provided that in an action or proceeding where the applicable statute of limitations is four months or less, such proof of service must be filed not later than fifteen days after the date on which the applicable statute of limitations expires. If proof of service is not filed and there has been no appearance by the defendant within the time provided in this section for filing proof of service, the action or third-party action shall be deemed dismissed as to the non-appearing party with respect to whom no proof of service has been filed, without prejudice and costs.

(CPLR 306-b, McKinney's 1992, 1993).

Footnote 2: It seems appropriate to apologize at this juncture, because due to the very academic nature of this issue, the discussion you are about to read will most certainly outrun the decision (Aldisert, Opinion Writing 10 [1990]). Of course, this court, ever so mindful that the primary purpose of a judicial opinion is to inform the participants and any reviewing court of the rationale underlying the court's decision, will earnestly attempt to not craft something resembling Papal Encyclicals (see, Ansonia Associates v King NYLJ 5/27/92 at 24, col. 2 [Civ Ct, New York County, Tolub, J] ("Consistent with the principle that the primary purpose of a judicial opinion is to inform the participants and any reviewing court of the rationale underlying the courts decision, and ever mindful of the tendency of judicial opinions to resemble Papal Encyclicals, this court will endeavor as succinctly as possible to set forth its findings of fact and conclusions of law" (id.)

Footnote 3: Before 1992, an action was commenced in New York by service of process. The problem with that system, as illuminated by the Court of Appeals in Matter of Gershel v. Porr, 89 NY2d 327 [1996], was that many cases which were commenced before 1992, never had an index number. Under the current commencement by filing system, a case cannot be commenced without one (id.)

Footnote 4: For a comprehensive brief summary, see, Barr Altman, Lipshie and Gerstman; New York Civil Practice Before Trial [James Publishing 2009] §3:73-3:74).