Weaver v City of New York

[*1] Weaver v City of New York 2015 NY Slip Op 51198(U) Decided on July 29, 2015 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2015
Supreme Court, Queens County

Clifford Weaver, Plaintiff,

against

The City of New York, SGT. ANONYMOUS, Shield No.ANONYMOUS and P.O. ANONYMOUS, Tax Reg #ANONYMOUS, Defendants.



14400/14



Ernestine Mings, Esq.Rupert and Gross, PC(Attorney for Plaintiff)150 Broadway, Suite 712New York, NY 10038

Zachary Carter, Esq.Corporation Counsel(Attorney for Defendant)100 Church Street, New York, NY 10007
Phyllis Orlikoff Flug, J.

Plaintiff, Clifford Weaver, moves inter alia for a default judgment against defendants Sgt. Anonymous, Shield #Anonymous and P.O. Anonymous, Tax Reg #Anonymous (hereinafter "Individually named defendants"). Defendants cross-move inter alia to compel plaintiff to accept [*2]the amended answer served on February 12, 2015.

This is an action to recover damages for injuries allegedly sustained by plaintiff on June 19, 2013 when he was arrested at his residence located at 147-28 88th Avenue, in the County of Queens, City and State of New York.

The individually named defendants were served pursuant to CPLR § 308[2] with service being deemed complete as of October 31, 2014. As such, pursuant to CPLR § 320[a], the individual defendants were required to appear or otherwise answer the complete no later than December 1, 2014. As the individual defendants did not appear until service of the amended answer on February 12, 2015, they are in default.

Nevertheless, "public policy favors the resolution of cases on their merits and courts have broad discretion to grant relief from pleading defaults where the defaulting party has a meritorious claim or defense, the default was not willful, and the opposing party is not prejudiced" (Harris v. City of New York, 30 AD3d 461, 463-64 [2d Dept. 2006]; see also New York & Presbyterian Hosp. v. Am. Home Assurance Co., 28 AD3d 442, 443 [2d Dept. 2006]; Beizer v. Funk, 5 AD3d 619, 620 [2d Dept. 2004]).

Defendants have demonstrated that the delay was not willful and was instead the result of a required internal representation review by multiple city agencies and departments (See Harris, supra, at 465). Defendants have likewise demonstrated the existence of potential meritorious defenses by the submission of an answer with affirmative defenses (See Goldman v. City of New York, 287 AD2d 482, 483 [2d Dept. 2001]).

Finally, plaintiff's claim that he would be prejudiced because the amended answer, which raises the defense of improper service, was not served until after the time to effectuate proper service had expired.

Notably, however, plaintiff did not seek entry of a default judgment until after the amended answer was served and the time to effectuate proper service had expired.

Moreover, as the individual defendants have agreed to waive this defense in their reply papers, plaintiff's sole claim of prejudice is moot.

Accordingly, plaintiff's motion is denied, in its entirety.

Defendants' cross-motion is granted to the extent that defendants are directed to strike the affirmative defense alleging lack of personal service, paragraph #14, from their answer, and, as so modified, defendants are directed to serve their amended answer on plaintiff no later than September 15, 2015, and is denied in all other respects.

July 29, 2015 ____________________

J.S.C.