Apt. Mgmt. Assoc. Inc. v Borshchevskaya

[*1] Apt. Mgmt. Assoc. Inc. v Borshchevskaya 2005 NYSlipOp 51035(U) Decided on June 28, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
2004-1362 K C

Apt. Mgmt. Assoc. Inc., as agent for Beach Haven Mgmt. Corp., Respondent,

against

Yelena Borshchevskaya, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered May 14, 2004, denying her motion to vacate the default judgment, dismiss the action pursuant to CPLR 3211 (a) (4), and, inter alia, for sanctions and costs pursuant to the Rules of the Chief Administrator (22 NYCRR) § 130-1.1.

Order unanimously modified by granting so much of defendant's motion as sought vacatur of the default judgment; as so modified, affirmed without costs.

In or about September 2003, plaintiff commenced this action to recover, inter alia, damages for "loss of rent and disbursements arising out of the breach of a written lease." Defendant subsequently served plaintiff's attorney with an answer in October 2003, but did not file the same with the clerk of the court. Thereafter, in March 2004, a default judgment was entered against defendant. Defendant then moved to vacate the default judgment, dismiss the action pursuant to CPLR 3211 (a) (4) on the ground that there was a pending action against defendant for the same cause of action which plaintiff had commenced in April 2003, and for sanctions and costs pursuant to the Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (a) (b), (c) and (d). Said motion was denied by order of the court below entered on May 14, 2004.

Pursuant to CCA 400, an action is commenced in the Civil Court, and jurisdiction acquired, by service of a summons. The service of a summons is complete immediately upon personal delivery to the defendant or upon the filing of proof of service where service was made by any other means (see CCA 410). Herein, it is uncontroverted that plaintiff never filed proof of service for the April summons and complaint, and the record does not indicate how said summons was served upon defendant. Accordingly, there is no indication in the record that the service of the summons in April 2003 commenced an action (see CCA 400, 402, 410), and, thus, the [*2]
court below properly determined that no other action was pending when plaintiff served defendant with the instant summons and complaint.

In regard to the summons and complaint served in September 2003, defendant had to "appear and answer" within 30 days after plaintiff filed its proof of service with the court on September 22, 2003 (see CCA 402 [b]). Defendant's attorney stated that he served plaintiff's attorney with an answer in September 2003, but did not admit to filing same with the clerk (see CCA 401 [b]; Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.6). Plaintiff's attorney admitted that there was a possibility that an answer had been received by his office and, in any event, agreed to vacate the default judgment if defendant withdrew her motion.

Under the totality of the circumstances in the case at bar, as well as the strong public policy preference for resolving disputes on the merits (see e.g. Atkins v Malota, 1 AD3d 294 [2003]), the order of the court below is modified by granting that part of
defendant's motion seeking to vacate the default judgment. The court, however, properly denied those parts of the motion seeking dismissal of the September complaint and sanctions and costs (see 22 NYCRR 130-1.1).
Decision Date: June 28, 2005