Flores v City of New York

[*1] Flores v City of New York 2008 NY Slip Op 51801(U) [20 Misc 3d 1140(A)] Decided on August 14, 2008 Supreme Court, New York County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2008
Supreme Court, New York County

Pedro A. Flores, Plaintiff,

against

The City of New York, THE NEW YORK CITY POLICE DEPARTMENT, and TIMOTHY LANG, Defendants.



405191/2006



For the Plaintiff:

Friedman, Levy, Goldfarb & Weiner, P.C.

By: Jeffrey I. Weiner, Esq.

250 W 57th St., Suite 1619

New York NY 10107

(212) 307-5800

For the Defendants:

Michael A. Cardozo, Esq.

Corporation Counsel of City of New York

By: John Orcutt, Esq.

100 Church St., 4th Fl.

New York NY 10007-2601

(212) 788-0496

Paul G. Feinman, J.

The motions bearing sequence numbers 002 and 003 are consolidated for decision.

In sequence number 002, defendants move to vacate that portion of this court's order dated May 14, 2007 and entered May 21, 2007 which deemed defendant Timothy Lang to be in default and to permit him to file a late answer to the amended complaint. For the reasons set forth below, defendant Lang's motion is granted. In sequence number 003, plaintiff moves for summary judgment on the issue of liability. For the reasons set forth below, plaintiff's motion is denied.

Factual and Procedural Background

Plaintiff commenced this action against the City of New York, The New York City Police Department and Police Officer Timothy Lang to recover monetary damages for personal injuries he allegedly incurred as a result of a collision involving his automobile and an unmarked police car operated by Officer Lang which occurred on July 1, 2000. (Pl. Mot. Ex. E, [*2]Complaint). Plaintiff states in an affidavit submitted in support of his motion that while proceeding westbound on West 110th Street at 20 miles per hour, Lang's double-parked car pulled into his lane of traffic without warning, striking the front right side of his car. (Pl. Mot. Ex. I, Flores Aff. ¶¶ 2, 6). According to his affidavit, the front of his car was adjacent to the officer's car's drivers-side front door when the officer accelerated into plaintiff's lane of traffic, and the drivers-side front tire struck the rightmost corner of plaintiff's car's bumper. (Flores Aff. ¶ 5).

Plaintiff's action against defendants was commenced in the Civil Court of the City of New York, New York County by serving a copy of the summons and endorsed complaint on the City of New York at its offices located at 350 Jay Street, Brooklyn, New York, as stated in the affidavit of service dated October 12, 2001. The documents were then filed with the clerk of the Civil Court. Although a home address for Lang was listed on the summons, there is no affidavit of service in the court file showing that Lang was ever personally served. The Corporation Counsel filed an answer only on behalf of the City and the Police Department in December 2001. (Def. Mot. Ex. B).

On April 28, 2006, another justice of this court granted plaintiff's application for removal brought on by way of a special proceeding (Flores v City of New York, et al., Index No. 102552/2006 [Sup. Ct., NY Co., Dec. & Ord. dated April 28, 2006 and entered May 8, 2006, Stallman, J]). Specifically the court directed removal of the action from the Civil Court of the City of New York to the Supreme Court of the State of New York pursuant to CPLR 325(i). The court also directed that the New York County Clerk issue an index number to the action, granted leave for amendment of the complaint, and ordered that the proposed amended complaint attached to the moving papers would be deemed served upon all defendants upon service of a copy of its order with notice of entry. Plaintiff's process server attests that all three defendants were served with a copy of the April 28, 2006 decision and order and notice of entry thereof by ordinary mail on May 8, 2006 to the last known addresses of the defendants. (Def. Mot. Ex. C, Aff. of Service). The April 28, 2006 order also directed the defendants to serve an answer to the amended complaint within 30 days.

After the removal was effected, plaintiff moved for entry of a default judgment against all three defendants for failing to answer the amended complaint (Flores v City of New York, et al., Index No. 405191/2006 [Mot. Seq. 001]). The City cross-moved for leave to serve a late answer to the amended complaint and for the dismissal of all claims against Lang or, in the alternative, that the City be granted an additional thirty days to interpose an answer for Lang. (Def. Reply, Ex. A). At the time the City made its cross-motion it was not authorized to represent Lang as he had not yet made a request for representation. By decision and order dated May 14, 2007 and entered May 21, 2007, this court granted plaintiff's motion only to the extent that it deemed Lang to be in default, as the City had not offered a reasonable excuse or explanation for the delay in interposing an answer on his behalf. (Flores v City of New York, et al., Index No. 405191/2006 [Sup. Ct., NY Co., Dec. & Ord. dated May 14, 2007 and entered May 21, 2007, Feinman, J]). The court granted defendants' cross-motion to the extent that the amended answer on behalf of the City of New York and the Police Department was to be deemed timely filed upon service of a copy of the order with notice of entry. Id. The City then moved to vacate Lang's default, but inasmuch as it was erroneously brought in the disposed special proceeding for removal rather than the actual underlying action, the court denied the motion without prejudice to renewal of the motion under the correct index number and action. [*3](Flores v City of New York, et al., Index No. 102552/2006 [Sup. Ct., NY Co., Dec. & Ord. dated October, 23 2007 and entered Nov. 1, 2007, Feinman, J]). The instant motion sequence number 002 is that renewed motion.

The City moves for an order relieving defendant Police Office Timothy Lang from the order of default and for an order allowing the proposed second amended answer to be filed on his behalf. In support of its motion the City offers the affidavit of Officer Lang of June 15, 2007 in which he states that while he was aware of the action pending against him he has not been "served with a summons and complaint in the instant action." (Def. Mot. Ex. I, Lang Aff.). The City also argues that it could not interpose an answer for Lang until his request for legal assistance, first made on February 1, 2007, was approved, which did not happen until April 5, 2007.

In opposition to the motion, plaintiff maintains that Officer Lang was served with the amended complaint pursuant to the court's April 28, 2006 order, as shown by the process server's affidavit of service. (Pl. Aff. in Opp. ¶ 24-26 and Def. Mot. Ex. C). Additionally, plaintiff argues in further opposition to the motion that the failure to interpose an answer on behalf of Officer Lang was deliberate as the City had the authority and responsibility to interpose an answer on his behalf, that no reasonable excuse was offered for failing to comply with a court order; and that Lang does not have a meritorious defense to the claims brought against him. (Pl. Aff. in Opp. ¶ 3, 15).

Legal Analysis

Section 5015 of the CPLR is the main provision for the vacatur of judgments and orders (Siegel, Practice Commentaries, McKinney's Consol. Law of NY, Book 7B, CPLR 5015, at 202). Defendant Lang argues that this court's order deeming him to be in default should be vacated because, in part, he has never been properly served with process. In seeking the order, defendant relies upon several provisions of the CPLR including 5015 (a) (1). CPLR 5015 (a) states, in part, that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just." "Under CPLR 5015 (a), a court is empowered to vacate a default judgment for several reasons, including lack of jurisdiction." (Woodson v Mendon Leasing, 100 NY2d 62, 68 [2003]). CPLR 5015 (a) (1) provides that a party may be relieved from a judgment on the grounds of "excusable default," i.e., a reasonable excuse for a delay in appearing and answering the complaint, provided defendant has a meritorious defense to the action. (See, Eugene Di Lorenzo, Inc. v A.C. Dutton Lumber Co., 67 NY2d 138, 141 [1986]). Defendants argue, in relevant part, that Lang should be entitled to defend himself on the ground that he had never been served with the summons and complaint and that the court does not have personal jurisdiction over him. Thus, CPLR 5015 (a) (4), which allows the court to vacate a judgment it has rendered for lack of jurisdiction, is more applicable to the matter at bar than CPLR 5015 (a) (1). A court may vacate its own judgment for sufficient reason and in the interests of substantial justice based on the court's inherent discretionary power (Woodson at 68). Furthermore, when relying on CPLR 5015 (a) (4), a defendant need not offer a meritorious defense (see, Fattarusso v Levco Am. Improvement Corp., 144 AD2d 626 [2nd Dept 1988]) or a reasonable excuse (Ayres Mem. Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904, 905 [3rd Dept 2005]; see also State of NY Higher Educ. Servs. Corp. v Sparozic, 35 AD3d 1069 [3rd Dept 2006]), as the lack of jurisdiction alone will constitute the excuse for the default (see Ismailov v Cohen, 26 AD3d 412, 413 [2nd Dept 2006]).Notwithstanding the argument made by plaintiff regarding service of Justice Stallman's [*4]April 28, 2006 decision and order constituting service of the amended complaint, the record does not establish that the original Civil Court summons and endorsed complaint, served on the City in October of 2001, was ever served on Lang. In other words, there was no action valid action pending against Lang to be removed.

The record also indicates that the method of service employed for service of the amended complaint in May 2006 was solely by mail. "[P]ersonal jurisdiction always requires notice." (Siegel, New York Practice § 58 at 83 [4th ed]). "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 NY2d 592, 594 [1986]), and "[s]ervice is only effective when it is made pursuant to the appropriate method authorized by the CPLR." (Markoff v South Nassau Community Hosp., 61 NY2d 283,288 [1984]).

CPLR 308 defines the various means of personal service upon a natural person. Simply mailing the summons and complaint by ordinary mail does not constitute one of the available means (CPLR 308 [1], [2], [3], and [4]). Plaintiff was, of course, free to seek an alternative method directed by the court (CPLR 308[5]). CPLR 312 (a) allows for personal service by mail, but the rule mandates that the defendant acknowledge receipt and mail it within 30 days to constitute proof of service. In short, even accepting the process server's affidavit on face value, personal service on Lang was not accomplished.

"It is well settled that where service of process has been improperly effected, any resulting default judgment is a nullity. This is so even where the defendant had actual notice of the lawsuit, and no meritorious defense, for in such a case, the court never had personal jurisdiction over the defendant." (DeMartino v Rivera, 148 AD2d 568, 569 [2nd Dept 1989]). At this juncture, plaintiff's own affidavits do not clearly show that Lang was properly served with process, and it would be untenable to allow the default judgment to stand against him, as without proper service this court never obtained jurisdiction over him. Therefore, defendant's motion to vacate the order of default dated May 16, 2007 is granted (CPLR 5015 [a] [4]). The court notes that on this motion Lang only seeks permission to file a late answer, and does not seek renewal of the court's prior order denying dismissal of the action. Accordingly, the second proposed amended answer annexed as Exhibit J shall be deemed timely served and filed upon entry of this order.

Motion Sequence 003: Plaintiff's Motion for Summary Judgment

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])."[T]he motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." (CPLR 3212 [b]). Conclusory assertions contained in an affidavit may not serve as a predicate for summary judgment when opposed by countervailing conclusory assertions. (Neufeld v Schachner, 61 AD2d 952, 953 [1st Dept 1978]). Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of factual issues. (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61 [1966]). "[Summary judgment] is rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances." (Johannsdottir v Kohn, 90 AD2d 842, 842 [2nd Dept 1982]).

Plaintiff moves for summary judgment arguing in sum that Officer Lang has not presented any evidence that factually disputes his version of the facts. Plaintiff argues that Lang [*5]has violated Vehicle and Traffic Law section 1128 (a), which provides that vehicles "shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Lang's affidavit, which was submitted not in response to the instant motion but rather in support of defendants' motion for vacatur, states that before he pulled out from the parking spot, he had checked both his side and rear view mirrors, and as he attempted to pull out, plaintiff's vehicle struck his vehicle "from behind on my driver's side wheel well." (Pl. Mot. Ex. J, Lang Aff. ¶ 3). It is not clear from his affidavit whether the front or rear wheel well was the point of impact. Neither party submits a copy of the traffic incident report or photographs or any other documentation in support of their position. There was no 50-h hearing in this matter, and while plaintiff's deposition was apparently scheduled, he has twice adjourned it. (Def. Aff. in Opp. ¶ 4).

Contrary to plaintiff's arguments, the affidavits reveal issues of fact still in dispute between the parties. Plaintiff maintains that his vehicle was struck by defendant's and Lang maintains that his vehicle was struck by plaintiff's. There is also a discrepancy regarding the issue of negligence. Plaintiff's account of the accident indicates that Officer Lang was negligent per se, in violating Vehicle and Traffic Law § 1128 (a) by darting unexpectedly out of a parking spot into which his vehicle had been double parked and pulling into a lane of traffic in which plaintiff had the right of way. Officer Lang, on the other hand, states that he checked both his side and rear view mirrors before going forward. Officer Lang's account gives no indication that he acted negligently in any way and also appears to indicate that he obeyed Vehicle and Traffic Law § 1128 (a) in doing what the law demanded by first ascertaining that it was safe to pull out of his parking spot before proceeding. Additionally, Officer Lang's account leaves open the possibility that plaintiff's negligence may have been the sole cause of the accident. Therefore, the motion for an order granting summary judgment on the issue of liability is denied. It is

ORDERED that the City's motion to vacate, motion sequence 002, is granted to the extent that (1) Timothy Lang's default in appearing on motion sequence 001 is vacated, (2) the part of the court's May 14, 2007 order which deemed Lang to be in default in answering the amended complaint is vacated and (3) the City's second amended answer served on behalf of all defendants, in the form annexed to the moving affirmation as Exhibit J, shall be deemed timely served and filed upon entry of this order; and it is further

ORDERED that motion sequence 003, plaintiff's motion for summary judgment on the issue of liability is denied; and it is further

ORDERED that the parties are to consult and arrange for the outstanding depositions of all parties to be completed not later than October 30, 2008 and are to appear for their previously scheduled compliance on November 5, 2008, in Supreme Court, 80 Centre Street, room 103, at 2:00 pm.

This constitutes the decision and order of the court.

Dated: Aug. 14, 2008____________________________________

New York, New YorkJ.S.C.