Cox v NAP Constr. Co., Inc.

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Cox v NAP Constr. Co., Inc. 2011 NY Slip Op 32459(U) September 9, 2011 Sup Ct, NY County Docket Number: 111790/2003 Judge: Shirley Werner Kornreich 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. SCANNED ON 9 1 1 5 1 2 0 1 1 ~ ~ [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY JUSTICE SHIRLEY WERNER KORNREICH PART 57 Justice INDEX NO. / f MOTION DATE - v MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to were read on this motion to/for PAPER$ NUMBEAEP Notice of Motion/ Order to Show Cause Answering Affidavits - Affidavits - Exhlbits ... - Exhibits Replying Affidavits Cross-Motion: 0 Yes & No P ,R Y Upon the foregoing papers, it is ordered that this motion %,, - 4 % % c L P Li -5 # uG I, b i, 49 . ; ( d * * Fy { A r 1 s s, M~TI~N DECIDED IN ACCORDANCE WITH ACCOMPANYING MEMOAANbUM OEClSlON AND ORDER. FILED Dated: 0 FINAL DISPOSITION B NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST fl REFERENCE 0 SETTLE ORDER/ JUDG. 0 SUBMIT ORDER/ JUDG. Check one: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ___r-----_----------_________f__________---------------_----------- ANTHONY COX. ROGER FRANCO, JON I,INAKES, and SAMUEL MITCHELL, individually and on behalf of all other persons similarly situated who were employed by NAP CONSTRUCTION COMPANY, INC. with respect to certain Public Work Projects awarded by the CITY OF N E W YORK and/or THE NEW YORK CITY HOUSING AUTHORITY, Index No.: 11 1790/2003 Plaintiffs, DECISION and ORDER -against- NAP CONSTRUCTION COMPANY, INC., ST. PAUL MERCURY NSURANCE COMPANY, GREENWICH INSURANCE COMPANY and ANTHONY PANAGIO, Third-party Plaintiff, -againstNAP CONSTRUCTION COMPANY, INC., ANTHONY PANAGIO and SHERYL PANAGIO, Second Third-party Plaintiff, -against- NAP CONSTKIJCTION COMPANY, INC., ANTHONY PANAGIO and SHERYL PANAGIO, 1 [* 3] HON. KORNREICH, SHIRLEY WERNER, J.: Upon thc foregoing papers, defendant and second third-party plaintiff St. Paul Mercury Insurance Company, Inc. s motion to reargue is granted, on default. The facts of this case are laid out in this court s decision and order dated November 30, 2010 and will not be repeated here except as necessary for the purposes of this decision. In that order, the court found that St. Paul had submitted sufficient evidence to establish a prima facie claim for indemnification against defendants and second third-party defendants Nap Construction Company, Inc. (Nap), Anthony Panagio and Sheryl Panagio. It further found that Nap had answered St. Paul s second third-party complaint, but that after Nap s counsel had been relieved by the court, it had failed to retain new counsel and make any subsequent appearances. Nevertheless, the court denied St. Paul s motion for a default judgment against Nap due to its failure to submit proof of original service in accordance with CPLR tj 321 S(f). While the denial was without prejudice to renew upon submission of proof of service, the court stated that the court will dismiss St. Paul s second third-party complaint, with prejudice, unless St. Paul renews and re-files its motion for default within thirty days of entry of this order. On December 23,2010, St. Paul again moved for a default judgment, this time submitting what it purported to be proof of original servicc. Tn support of this motion, it submitted the affidavit of Jeffrey Wittenberg, president of Suprcmc Judicial Services, Inc. (Supreme), attesting I The Panagios filed a petition for individual bankruptcy under Chapter 13 of the Bankruptcy Code on October 6, 2010. This action was therefore stayed as to them as ofthat date and the stay remains in place. For this reason, the decision and order dated November 30, 2010 made no rulings as to the Panagios. 2 [* 4] to the fact that, according to his company s records, Nap was servcd on January 8, 2004, at 2: 17 p.m, at 64-14 69th Place, Queens, New York 1 1379. He attested that his records reflected that on that date, an employee of Suprenic named Israel Evans affccted service on Nap by personally delivering a copy of the Summons and Complaint to Anthony Panagio, who identified himself as an authorized party and managing agent ofNap. flowevcr, St. Paul did not submit either the original affidavit of service made by Mr. Evans or a subsequent affidavit by Mr. Evans attesting to the fact of service. As a result, by a decision and order dated March 21, 201 1, this court dismissed St. Paul s second third-party complaint, against both Nap as well the Panagios, with prejudice. Accordingly, St. Paul. now moves, pursuant to CPLR 222 1(d) for leave to reargue, and upon reargument, seeks an order ( 1) reinstating the action against Anthony Panagio and Sheryl Panagio, subject to the stay imposed by the United States Bankruptcy Code; (2) reinstating the action against Nap Construction Company, Inc. and setting the matter down for trial, together with any additional relief the Court deems just and proper. Notice of Motion, p. 2. Neither Nap nor the Panagios have offered any opposition to this motion. CPLR 222 1(d) states that A motion for leave to reargue: (1) shall be identified specifically as such; [and] (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion... CPLR 320(a) states that: a defendant appears by serving an answer or a notice of appcarance, or by making a motion which has the effect of extending the time to answer. CPLR 320(b) states that an appearance of the defendant is equjvalent to personal service of the 3 [* 5] summons upon him. unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 32 1 1 is asserted by motion or in the answer as provided in rule 32 1 1 . See also, Pett rson 17 J J R e d Estufe, Znc., 82 AD3d 859 (2nd Dept 201 1) (defendant s failure to raise the affirmative defense of lack of personal jurisdiction in its answer or to move on that ground within 60 days of serving its answer constitutes a waiver of the defense). Nap and the Panagios answered St. Paul s second third-party complaint and failed to raise the deknse of lack of personal jurisdiction-due to improper service or otherwise. Fiorello Affirm. Ex. 3. Having thus waived the defense, it was unnecessary for the court to require St. Paul to submit proof of original service on them. Moreover, as the action was stayed as to the Panagios pursuant to the United States Bankruptcy Code, the action against them should not have been dismissed. Accordingly, it is hereby ORDERED that defendant and second third-party plaintiff St. Paul Mercury Insurance Company, I k s motion to reargue is granted, on default; and it is further ORDERED that, upon reargument, the Court vacates its prior order, dated March 2 1, 201 1; and it is further ORDERED that the action as to Anthony Panagio and Sheryl Panagio is severed and continued, subject to the stay imposed pursuant to the Bankruptcy Code; and it is further ORDERED that plaintiff s motion for a default judgment against defendant Nap Construction Company, Inc. is granted, on default; and it is further ORDERED that judgment is lo be entered in defendant and second third-party plaintiff St. Paul Mercury Insurance Company, Inc. s favor and against second third-party defendant Nap Construction Company, Inc., in the principal amount of$l,669,159.37, with interest at the [* 6] statutory rate from the date of this order until entry of judgment, as calculated by the Clerk, together with costs an disbursements as taxed by the Clerk. 9 Enter: 5

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