Casiano v R.G. Ortiz Funeral Home Inc.

Casiano v R.G. Ortiz Funeral Home Inc.

2025 NY Slip Op 00480

Decided on January 30, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 30, 2025
Before: Kern, J.P., Singh, Kennedy, Rodriguez, Michael, JJ.

Index No. 817109/23 Appeal No. 3608 Case No. 2024-03935

[*1]Rosa Casiano et al., Plaintiffs-Appellants,

v

R.G. Ortiz Funeral Home Inc., Defendant-Respondent, Delta Air Lines, Inc., Defendant.

Rothstein Law PLLC, New York (Eric E. Rothstein of counsel), for appellants.

Lydecker, Melville (Louis B. Goldman of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about June 20, 2024, which denied plaintiffs' motion for a default judgment against defendant R.G. Ortiz Funeral Home Inc., unanimously affirmed, without costs.

Plaintiffs did not establish that R.G. Ortiz defaulted before January 16, 2024, the date plaintiffs filed their motion. Although R.G. Ortiz stipulated to a December 31, 2023 due date for its answer, defendant Delta Air Lines, Inc. removed the action to federal court three days before that deadline, on December 28, 2023. R.G. Ortiz then had until January 4, 2024 to file an answer in federal court (see Fed Rules Civ Pro rule 81[c][2][C]). However, on that date, the federal court remanded the action to state court. Supreme Court was not entitled to resume proceedings until the date on which the federal court clerk mailed a certified copy of the remand order to the clerk of Supreme Court (28 USC § 1447[c]), and thus R.G. Ortiz's answer could not have been due before that date. The record does not indicate when this mailing occurred; however, the record demonstrates that the clerk of Supreme Court did not enter the remand order until January 16, 2024. Because R.G. Ortiz had until the end of that day to file its answer, plaintiffs' papers, filed that day, were filed prematurely and did not establish that R.G. Ortiz defaulted.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 30, 2025