Citera v Kramer
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Citera v Kramer 2012 NY Slip Op 31272(U) May 9, 2012 Sup Ct, Suffolk County Docket Number: 21461-2011 Judge: Peter H. Mayer 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. [* 1] SflOKT FOR,,] ORDER INDEX NO. 21461-201 [ SUPREME COURT - STATE OF NEW YORK IAS. PART 17 - SUFFOLK COUNTY PRESENT: MOTION DATE 9-15-11 ADJ. DATE 11-29-11 Mot Seq. # 001 - MD: 002 - MG Hem. PETER I-l. MAYER Justice of the Supreme Court PRELIMINARY CONFERENCE ---------------------------------------------------------------)( CI-lIUSTOPHER CITERA, Plainti n, SCHEDULED FOR JUNE 12,2012,9:30 a.m. O'Brien & O'Brien, LLP Attorneys for Plaintiff 168 Smithtown Boulevard Nesconset, New York 11767 s), Law Office of Deidre Tobin & Associates Attorneys for Defendant Tenke 901 Franklin Avenue Garden City, New York 11530 - against - BRUCE KRAMER and ELIZABETH TENKE, Defendant( s). ---------------------------------------------------------------X Richard T. Lau & Associates Attorneys for Defendant Kramer 300 Jericho Quadrangle East, Suite 260A Jericho, New York 11753-9040 Upon the reading and tIling of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated August23, 201 ], and supporting papers; (2) Order to Show Cause by the defendant, signed Octo her 17, 2011, andsupporting papers; (3) Affirmation in Opposition by the plaintiff, undated, and supporting papers; (4) Reply Affinnalion by the defendant Kramer, dated November 28, 20 I J, and SUPP0l1ingpapers; and now UPON DUE DELJBERA TrON AND CONSIDERATION papers, the motion is decided as follows: it is BY THE COURT of the foregoing ORDERED that the motion (001) by the plaintilT for a default judgment against defendant Bruce Kramer for failure to timely appear or answer is considered under CPLR §3215 and is hereby denied; and it is further ORDERED that the application by Order to Show Cause (002), dated October 17,2011, in which the defendant, Bruce Kramer, seeks an order pursuant to CPLR 50 15(a) vacating any default and pursuant to CPLR §30 12(d) granting an extension oftimc to answer the plaintiffs summons and complaint, is hereby granted, and counsel for dcJendant Kramer shall promptly serve an answer upon counsel for all parties; and it is fmiher [* 2] Citera II Kramer Illdex No. 2146/-20j / Page 2 ORDERED that counsel for detCndant Kramer shall promptly serve a copy of tillS Order upon counsel for all parties by F11"st Class Mail. and shedI promptly thereafter file the affidavit(s) of such servlCC with the County Clerk: and It IS further ORDERED that all parties shull appear for a Preliminary Conference on Tuesday, .June 12,2(112 at 9:30 a.lll. before the undersigned in the courtroom located at One Court Street, Room A-257, Pari] 7, Riverhead. New York. This action arose from a motor vehicle accident that occurred on October 25, 2010 at the intersection of Stackyard Drive and \\lavecrest Drive in Mastic Beach, New Vork. At the time of the accident, the p]allltiff was a passenger in the vehicle operated by defendant, Elizabeth Tenke, when the vehicle operated by Ms. Tenke came into contact with the vehicle operated by defendant Bruce Kramer. The plaintiff now seeks a dct~mltjudgment against defendant Kramer pursuant to CPLR §32] 5 for failure to timely answer or otherwise appear in this action. Although plaintiff's counsel would not accept the late answer of defendant Kramer, he did accept the late answer of defendant Tenke pursuant to a stipulation dated September 14,2011. Defendant Kramer cross-moves, pursuant to CPLR 50 15(a), to vacate the default in answering, and 10 extend his time to answer the complaint pursuant to CPLR §30 12(d). I Defendant Kramer was served with the summons and complaint on July 26, 201] and faxed the papers to State Farm Insurance Company el31m representative, MIchael Heiferon, on August 8, 201 J. According to an alTidavit from Michael Hefferon, a claim representative from State Fann, on August 9, 2011 he was assigned to handle the claim. ML Hefferon dictated letters that same day referring the summons and complaint to Richard T. Lau & Associates, the law firm assigned to defend Mr. Kramer's interests in the action. In his affidavit, Mr. BetTeron states that due to a deJay in the word processing department, the letters were not completed L1l11il August 24, 201 ] and the letters and pleadings wefe sent to Richard Lau & Associates on August 31, 20] 1. In supp0l1 of his motion to vacate his dehlUl1and extend his timc to answer, defendant Kramer submits an affidavltfi·om Sharyn Sm")'er, the office manager for Ricahrd T. Lau & Associates. Ms. Sawyer supervises the firm's data entry group, whieh enters new case assignments 111to computer system so the attorneys in the oJlicc may prepare answers to complaints. be assigned to for the purpose offorwarding the Jiles to ,111 attorney in the office to prepare answers. According to Ms. Sawyer, the firm changed to a new case management system 111 August 2011. At the lime, the firm was the pilot otJiee for rollout ofthe new system. This new system 'A'ouldeventually be used by all 39 ClaIms Litigation Counsel offlces. The servers Jar the new system arc located 111 Phoenix, Anzona, and arc not controlled by the firm. When the firm and other ofJices began uSlllg the system, the system had very slow response times and even biled to operate at all on some days. During those down times, no ne\N Illes could be entered into the system or opened by employee::;. The problem was exacerbated by the employees having to learn how to use the nc\v system Accordlllg to Ms. Sawyer, on September 9, 20] 1, the tirm receIved the assignment IJoseph Nava was also a passenger in the Tenkc vehicle when the accident occurred. Mr Nav<l is a plaintiff in ,\ separate but related actioll. Joseph NIiViI v Bruce {{roilier 1II1d FJi:aheth Tcnkc:, under Suffolk County Index tl 21460-2011. Pl;lilltiffNava has also movcd for a defaultjudglllelil against Kramer inthm action and Kramer has, likcwise, cfoss-moved [0 vacate the default HI that action pursuant to CPLR 5015(a), and to cxtend his timc to answer pUfsuant to CPLR ~30 12(d), [* 3] Citera II Kramer 1m/ex No. 2/46/-20/1 Pa;:e 3 to r~prc~ent defendant Kramer: however. due to the backlog: and delays caused by the new system, Mr. Kramer" s defense file was not opened until September 26. 20] I Teresa Gawnmski is employed as a legal secretary in the data entry department at de!endaIll's counsel"s law firm. Her affidavit 1I1support of defendant's motion confirms. in detail. the problems Kramer' s de tense counsel experienced \'vith the nev,' computcr system and the reasons for the delay in answering. In relevant part. CPLR 50 15{a)(I) provides that the "court which rendered a judgment or order may relieve a party from it upon such tenus as may be just ... upon the ground of ... excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party ....· A defendant seeking to vacate its default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see CPLR 5015 la] [1]: Gray v E. R. Trucking Co., 59 NY2d 649 [1983]; Weinberger v Jud/au. Conlr .. 2 AD3d 631,768 NYS2d 338l2d Oept 2003]; Kap/insky v Mazor, 307 I\D2d 916,762 NYS2d 902 [2d Dept 200T]; Ennis v Lema. 305 AD2d 632, 760 NYS2d 197 [2d Dept 2003]; O'Shea v BillroJjJ, 302 AD2d 439. 753 NYS2d 737 [2d Oept 2003]). The determination of what constitutes a reasonable excuse lies within the sound discretion ofthe Supreme Court (Gamhardella v Ol"/OV Lighring, !nc., 278 AD2d 494, 717 NYS2d 923 [2d Dcp' 20001). In view of the public policy in favor of resolving cases on the merits, the Court may excuse a defendant' 5 failure to timely answer where the delay in answering is relatively short, there is no showing of prejudice to plaintiff. a potential meritorious defense exists, and no willfulness on the part of the defendant has been shown (see, Finke/stein v Sunshine, 47 AD3d 882; 852 NYS2d 168 r2d Dept 2008]; Jo/kovsky v Legeman, 32 AD3d 418,8] 9 NYS2d 561 [2d Dcpt 200GJ; Rottenberg v Preferred Prop. lv/gt.. Inc., 22 i\D3d 826, 803 NYS2d 177 [2d Dcp' 2005J; Kaiser v Delaney, 255 AD2d 362, 679 NYS2d 686 [2d Dept 1998[; lv/II/del' v Rock/and Armor & Metal CO/p., 140 A02d 3] 5. 527 NYS2d 550 l2d Dept ] 988]. McNeill v. /,(lsa/o, 115 AD2d 459; 496 NYS2d 357 [2d Dept 1985J; Stark v Marine Pm'Fer & Light (, '0., 99 A D2d 753, 471 NYS2d 668 l2d Dept 1984 J; Lindo v /'.,·lIan.l', 98 AD2d 765, 469 NYS2d 481 l2d Dept 19S3]; Alpha Fyeclltive IJlanning Corp. l' A/an, 59 AD2d 548. 397 NYS2d 139 [2cl Dept 1977]). The court has discretion to accept law office bilure as a rCl:lsonableexcuse pursuant to CPLR 2005 (see. M()n/(~tj(),.e Med etr vi /ar/ford Acc. & Indem, Co., 37 AD3d 673, 830 NYS2d 336[2d Dcpt 2007]). A conclusory and unsubstantiated claim of law ofJice failure will not rise to the level ofa reasonable excuse (Pell!l"Sen v l' Lysaght, Lysaght & Kramer. pc., 47 AD3d 783, 851 NYS2d 20912d Dept 2008J; Piton v (·ribh. 38 J\D3d 741. 742. 832 NYS2d 274 [2d Dept 2007]; Mafler ofJ3/ooll/l! Lubow, 45 AD3d 680, 845 NYS2d 43912d Dcpl 20071: LlIgauer v Forest OIY Ratner Co., 44 AD3d 829, 843 NYS2d 456 [2d Dept 2007 [). Pursuanl to CPLR ~2004, ··the COUlt may extend the time to appear or plead, or compel the acceptance ora pleading untimely served, upon such terms as may be just and upon a showing ofrcasonable excuse for dclay or default." Similarly. CPLR §3012(d) states that upon a motion by a party, ·<theCOUlt may extend the time to appear or plead. or compel the acceptance ora pleading untimely served. upon such terms as may be just and upon a showing of reasonable excuse for delay or default.'· Plaintin~s counsel (Iaims that defendant can not allege law ol"lke failure as his excuse, because the attorneys assigned to defend this case. Richard Lau & Associates. are employees of his insurance carrier, State Farm Mutual Automobile Insurance Company. According to counse!, "there was no 'law officc' l"uilurcbecause Richard T Lau and Associates is not a law office but a department of State Fann, all of [* 4] Citera 11 Kramer Jndex No. 2146J-10ll Page 4 \\lhose attorneys and starfan~ employees of State Farm.'· It IStrue that a gcneral excuse that a default \vas caused by an insurance carrier"s delay IS. by itself. insullielenl to establish a reasonable excuse lor the dd~lUh (see Kap/insky v Ala~(),.. 307 AD2d 916. 762 NYS2d 902 [2d Dcpt 2003]: O'Shea v Bitfl"OU( 302 AD2d 439, 753 NYS2d 737j2d Dcpt 20031, Meggelll' Gibson, 302 AD2d 372. 754 NYS2d 556 [2d Dept 2003J; Ci!indre//o F Royal!ill, 297 AD2d 699, 747 NYS2d 388 r2d Dcpt 2002]: Andrade v Rangimva!a, 297 AD2d 691. 747 NYS2d 385 r2d Dept2002J; Kaehar v Berlin, 296 AD2d 479, 745 NYS2d 471 [2d Dcr! 2002])_ In this case, however. the delcndant has submItted detailed affidavits to explain the delay. Further, plainti rrs counsel has submitted no authority for the proposition that a law firm employed by an insurance carrier is not a "law office" f{)r purpose of a "law office hlilurc" analysis. In fact, New York State Bar Association's Committee on ProfeSSIOnal Ethics has opined on this very issue that "[a] group oflawycrs who arc salaried employees of an insurance company and whose practice is exclusively in defense ofthc company's policy holders may hold themselves outas a law firm .. " (NY St Bar ASSllComm on ProfE1hics 01'726[2000]) When the de!ault is the result of' law office failure, and the Illotion to extend time satisfies the reqUJrements of CPLR §30 l2(d) or §5015(a), "the comi shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting fi-om law on-ice failure" (CPLR §20(5). Where, as here, the claim of law onice failure is supported by a detailed and credible explanation or the default, the Supreme Court has the discretion to accept law off-ice failure as a reasonable excuse (see Kohn v Kohn, 86 AD3d 630, 928 NYS2d 55 [2d Dept 2011]; Remote Meter Technology o/N y., Inc, v Aris Reolty Corp., 83 AD3d 1030, 922 NYS2d 440 [2d Dcpt 2011]; Winthrop Univ. f-/osp. v. lv!elro]Jo/itan Suhwban Bus Auth., 78 AD3d 685, 910 NYS2d 159 [2d Dept 2010]). With regard to a meritorious defense, defendant Kramer's affidavit reveals that as he ,-vasstopped and attempting to see past (n:es and cars obstructing his view when his vehicle was struck by defendant Elizabeth Tenke's vehlcle. According to Mr. Kramcr, the Tenke vehicle was speeding and traveling too close to the right side o1'thc road when it struck his vehicle. Indeed, the plaintiff named Elizabeth Tenke as a defendant in this action, setting forth the same allegations of negligence against defendant Tenke as those alleged against defendant Kramer. The statemcnts set forth by Mr. Kramer in his afJidavit, coupled with the allegations of negligence in plainti ff's own venfied complaint against defendant Tenke constitute a meritorious defensc for purposes of Mr. Kramer's motion under CPU-Z 5015(a) and 30 12(d). Finally, plaintllT s counsel claims that the plaintiff"would suiTer serious prejudice if a dehmlt were not entercd." In this regard, it is alleged that "following the DelCndant's detauit, the Plaintiff borrowed money against the judgment for his damages ... [, that] interest on the loan is substantial, and the Plaintiff took out the loan upon (he understanding that the Defendant's det~lUltwould shorten the time until the paymcnt ol'the judgmcnt. "2 Such understanding_ however, is misguided and speculative. Even if a default were granted against defendant Kramcr, the discovery process would have to proceed as to defendant Tenke and all proceedings for (hc entry or J judgment or the making of an assessment of damages against Kramer as the dchntlting party would be st8yed until the time of or !()llowing the tnal or other disposition ol'the action. Pursuant to CPI,R ~3215(d). in an action involving IT1ultipk detcndants, when "a defendant has answercd and onc or morc other defendants have failed to appear. plead, or proceed to tnal of an action rc,lCilcd ,md called for trial .. the court may enter an ex parte ordcr directing that proceedings [or the entry , - Plaintifrs opposition 1Odefendant Kramer's motion to ()xtend his lil1w 10 ilnswer is accompanied only by all aflirnHlliol\ II-om counsel. and is not supported by an nffidavil I"l"Om parly plainriff. the [* 5] Citera II Kramer I11dex l',ro. 2/46/-2011 P(f<7e j " of a Judgment or the making of an assessment. the taking of an accoulll or proof. . be conducted at the time of or following the tna! or other disposition ol"the action against the defendant who has aJ1s\vered.'Accordingly. any alleged prejudice to the plaintitT would be the result of a sdf-imposed risk assumed by the plallltin~ by taking out a high-interest loan, based upon speculation that a default judgment would be granted against Kramer, and the misgUlded understanding that damages against Kramer would be assessed immediately. Any such alleged prejudice is not a "preJudice" for purposes of analysis under CPLR 50 15(a) or 03012(d). Based upon the foregoing, as we!! as the strong public policy in favor of resolving cases on the merits, the lack of prejudice to the plaintiff caused by the defendant's brief delay in answering, and the t~lct that the defendant's delay was not willful, the plaintiffs motion for a default is denied and defendant's time to serve an answer is extended (see Hemy v Kuveke, 9 AD3d 476; 781 NYS2d 114 [2d Dept 2004]; Burgess v Brooklyn JelFish J-/osp., 272 AD2d 285, 707 NYS2d 462 [2d Dept 2000]). ) This constitutes Dated: the Order of the Court. . ;' -r.>C ~,/ Mav9.2012 - --J. f/ ':) />tt'Li 1>-/ PE'IER H, MAYER;JS,c../ [ I FINAL DISPOSITION [X] NON FINAL DISPOSITION
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