Agurto v Zadeff

[*1] Agurto v Zadeff 2017 NY Slip Op 50127(U) Decided on February 3, 2017 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2017
Supreme Court, Queens County

Miriam E. Agurto, et al., Plaintiff,

against

Parviz Youseff Zadeff, Defendants.



713230/2015
Salvatore J. Modica, J.

The following papers were numbered and read on this motion by defendant seeking, among other things, dismissal of the action "for want of jurisdiction," and cross motion by plaintiff seeking a default judgment for defendant's failure to answer the complaint. Papers Numbered

Notice of Motion - Affirmation - Affidavit - Exhibits ECF docs. 16-18

Notice of Cross Motion - Affirmation - Exhibits ECF docs. 19-28

Reply Affirmation ECF doc. 29

SALVATORE J. MODICA, J.:

Upon the foregoing papers, it is ordered that defendant's motion, and plaintiff's cross motion, are determined as follows:

Plaintiff commenced this action seeking damages for alleged personal injuries sustained on February 2, 2015, as the result of a fall on premises owned by defendant. Plaintiff served a summons and complaint upon defendant in January 2016.

Defendant, alleging improper service of said pleadings, moved to dismiss the complaint by "motion in lieu of an answer" on March 7, 2016, which motion was denied by this court by order dated July 26, 2016, and entered on August 3, 2016. Prior to the submission date of that motion, plaintiff served a supplemental summons and amended complaint on defendant, the sole difference being the addition of the corrected name of the defendant in both pleadings.

Defendant now moves, again, to dismiss the complaint for lack of proper service, pursuant to CPLR 3211(8). Plaintiff cross-moves for a default judgment, for the failure of defendant to answer.

Defendant's motion to dismiss, pursuant to CPLR 3211(8) for failure to effect service of the summons and complaint, is denied. A motion to dismiss may be made no more than once "before service of the responsive pleading is required" (CPLR 3211 [e]). Further, the Court's July 26, 2016 order represented the "law of the case" - - a doctrine which articulates the "sound policy that, when an issue is once judicially determined, that [*2]should be the end of the matter as far as Judges and co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]; see, Ahrorgulova v Mann, 144 AD3d 953 [2016]).

The "law of the case" operates to bar a reexamination of the question resolved in a prior decision absent a demonstration of subsequent evidence or change of law, contained in a CPLR 2221 (e) motion to renew based on the subject decision (see, Strujan v Glencord Bldg. Corp., 137 AD3d 1252 [2016]). Defendant has failed to make such a motion herein.

Defendant's remaining contentions and arguments are either without merit or need not be addressed in light of the foregoing determination. Since defendant continues to be in default, his remaining requests for relief are unavailable to him until such default is vacated.

With regard to plaintiff's cross motion, plaintiff has established prima facie entitlement to a default as a matter of law by presenting, in support of its motion, proof of the service of the court's order with notice of entry on the defendant on August 3, 2016, and of defendant's failure to answer within the extension of time to do so, granted by CPLR 3211 (f). "In opposing a motion for leave to enter a default judgment based on a failure to timely appear or answer a complaint, a defendant must show a reasonable excuse for his or her delay in appearing or answering and a potentially meritorious defense" (Brice v City of New York, 139 AD3d 888, 888-889 [2016]; see, Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP, 144 AD3d 1097 [2016]).

Defendant's opposition papers fail to deny the allegations contained in the cross motion with regard to his default in answering, or to proffer an explanation for the reasons for such default. As a result, defendant's papers are devoid of evidence of a reasonable excuse for his default or of a potentially meritorious defense to the action. See, Wells Fargo Bank, N.A. v. Stewart, 2017 WL 187862, at *2, 2017 NY Slip Op. 00339 (2nd Dept. 2017) (reversing lower court's grant of motion to vacate defendant and allowing for late answer, the Second Department recently stated: "Here, Stewart failed to demonstrate a reasonable excuse for her default in answering the complaint. The absence of a reasonable excuse for the default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense.").

Consequently, the Court is rendered powerless to exercise its discretion to extend defendant's time to plead, under CPLR 3012(d) or CPLR 2004 (see, Kim v Strippoli, 144 AD3d 982 [2016]), and plaintiff's motion is granted.

Accordingly, defendant's motion is denied in its entirety, and plaintiff's cross motion, for a default judgment, is granted.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: Jamaica, New York

February 3, 2017

Honorable Salvatore J. Modica

J.S.C.