Kegelman v Town of Otsego

Annotate this Case

Download PDF

Kegelman v Town of Otsego 2020 NY Slip Op 34603(U) June 17, 2020 Supreme Court, Otsego County Docket Number: Ind. No. EF2019-0565 Judge: Brian D. Burns Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. EF2019-565 INDEX INDEX NO. NO. EF EF2019-565 2 0 19 -S65 INDEX NO. :L.........,,._.._..._,........,.__.,._....,_ lNYSCEF >"_ _ _ NYSCEF: 07/17/2020 RECEIVED DOC. NO. NO. ....... 90_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ RECEIVED NYSCEF: 07/17/2020 08/13/2020 ~YSCEF DOC, NO, 85 RECEIVED NYSCEF: 85 NYSCEF DOC. 532531 FILED: APPELLATE DIVISION - 3RD DEPT 04/05/2021 02:54 PM [*(FILED: 1]ILED : OTSEGO 39 PMJI OTSEGO COUNTY COUNTY CLERK CLERK 07/17/2020 08/13/2020 03: 04:38 PM 07/17/2020 03: CLERK COUNTY OTSEGO FFILED: 39¯PM1 NYSCEF DOC. NO. 9 I RECEIVED NYSCEF: 04/05/2021 At a terin term of the Supreme Court of of the At a of the Supreme Court the State of for State New York, held held in in and and for of New York, of at the of Otsego, at Cooperstown, the County Otsego, Cooperstown, County New York on June June New York on 17, 2020 17, 2020 Filed Entered Filed & & Entered 7/17/2020 7/17/2020 . Clerk Office Otsego County Clerk's s Office Otsego County PRESENT: HON. BRIAN BRIAN D. BURNS, HON. D. Acting Justice Justice PRESENT: BURNS, Acting THE STATE SUPREME COURT SUPREME COURT OF THE STATE OF NEW OF OF NEW YORK YORK COUNTY COUNTY.OF OF OTSEGO OTSEGO ______________________. _________, ~---------------------------------·---------------------------, C Kegelman Kegelman and Joan Joan C Kegelman Brian J Kegelman and DECISION AND ORDER ORDER DECISION AND Brian Plaintiffs, Plaintiffs, Ind. No. EF2019-0565 EF2019-0565 Ind. No. v. V. Town of Otsego, The Town The of Otsego, Defendant. Defendant ___. ________________________________ -----------------------------------------------------plaintiffs' The court held a a hearing via Skype on plaintiffs' motion default for on for The held via court Skype for Business Business motion for a a default hearing The parties were an opportunity to submit briefs after hearing. judgment. The parties were granted granted submit the hearing. Those an to bdefs after the Those opportunity judgmeñt. witnesses' briefs have. been reviewed and The has the have been and considered. considered. The court also considered considered the witnesses' reviewed court has also briefs witnesses' at the the hearing determinatinns testimony at and position to determinations as and was was in in a a position make the witnesses' to make as to to the testimony hearing their credibility regarding their testimony.. testimony.. credibility regarding Relevant Background Relevant Background of the CPLR. Plaintiffs previously filed aa petition petition pursuant pursuant to 78 By and Plaintiffs filed Article the CPLR. and to Article 78 of decision previously By decision Index dated order dated Augustl, the court court the petition under Number2019-0349 order 2019, the dismissed the petition under Index Number2019-0349 August dismissed 1,~2019, to CPLR Plaintiffs in the the Plaintiffs filed aa Summons and on 10, in pursuant to CPER 409(b). 409(b). filed Summons and Complaint Coinplaint on July 2019 10, 2019 July pursuant of system under Index EF2019-565 which referenced under "Notice NYSCEF system under Index Number EF2~19-565 NYSCEF Number is referenced wh1ch is under "Notice of verification of Service Claim". A is to Plaintiffs filed an of on Claim". A verification annexed to the the Complaint. Plaintiffs filed an Affidavit Service on is annexed Complaint. Affidavit 2019 Town of of Otsego on July service on the the Town Otsego Supervisor 2020 at 2:30 2:30 pm. July 11, indicating service on Supervisor on 10, at pm. 10, 2020 July indicating July 11, 2019 again on July 2019under Index EF2019-565. A Plaintiffs filed filed the Complaint Complaiñt Number the again on 19, under Index Num~er EF2019-565. A Plaintiffs 19, 2019 July of 1 of 3 [*fII$D• 2] PM 03 : 39 OTSEGO COUNTY COUNTY CJ§'IUC CLERK 07/17/2020 08/13/2020 04:38 PM /2020 /17 CLERK 07 COUNTY OTSEGO OTSEGO 03:39 PMJI ILED : |FFILED: NYSCEF DOC. DOC. NO. NO. 85 90 85 DOC. NYSCEF NYSCEF NO. EF2019-565 INDEX INDEX NO. INDEX NO. NO. EF2019-565 EF2019-565 07/17/2020 RECEIVED NYSCEF: RECEIVED RECEIVED NYSCEF: NYSCEF: 07/17/2020 08/13/2020 of Service verification was annexed annexed to the the Complaint. an Affidavit Affidavit Service on July Complaint. filed verification was to Plaintiffs filed an of on 19, Plaintiffs July 19, service upon Town of of Otsego Town Supervisor separate 2019 the Town Otsego Supervisor on July 2019. A separate 2019 indicating service upon th~ Town on 16, A 16, 2019. indicating July to the was filed filed on August August 2019. verification to was on ·6, verification the Complaint Complaint 6, 2019. A motion motion default was filed judgment filed on January 2020. A seeking aa default judgment was on 24, Respondent Respondent 24, 2020. seeking January opposed the motion motion on numerous the merits merits of the numerous grounds most of which which addressed the action. action. of addressed the of opposed the on grounds -- most The court held that the the respondents did not an Answer Answer time set forth in did within the limits set in The held that court respondents not file file an within the time limits forth CPLR§ 3012(a). CPLR § 3012(a), There dated There prepared of Claim Claim is purported Notice Notice of dated May prepared by by plaintiffs' plaintiffs' attorney is a a purported 2017 23, ·2017 attorney May 23, at the another not verified. the time. There is another Notice of Claim which was not verified. there is a a Notice time. Claim at There is Notice of which was Finally, there is Notice Finally, of Claim which was verified on December and is the ''Town Otsego of which was on "11, and to of Claim verified 2018 directed to the "Town of Otsego December is directed 11, 2018 The served no 'The Town denies having ever been served with aa valid Notice of There are County''. County". Town denies ever been with valid of Claim. are no Notice There Claim, having of service which have been filed nor was proof adduced the hearing which proofs service there actual at the proofs of which have been filed nor actual proof adduced at which was there hearing that tlie the Town Town was a valid valid Claim. indicates was actually served with Notice of Claim. that seryed with a Nodce .of 'indicates actually Law Conclusions of Law Conclusions of default permits CPLR of a default judgment when defendant has failed to CPLR § pennits entry ofa judgment when aa defendant has to failed § 3215(a) 3215(a) entry the failure of the file an our appellate appear. failure the Town of Otsego Otsego to file an answer; appellate court of to our court appear. Notwithstanding the Town of answer, Notwithstanding has recently reiterated the strong public favor of resolving cases on on their in favor their merits of cases merits has reiterated the public policy policy in recently strong resolving v DiLorenzo, Ins. Co. Mut. Ins. 2020N,Y. App. Div. LEXIS 2945, 2020 NY Slip Op (Preferred (Preferred Mut. NY Co. v 2020 N.Y. Div. LEXIS 2020 App. DiLorenzo, 2945, Op Slip [3drd Dept. Defendant several jurisdicti0ñal which would 2020]). has raised raised issues make 02845 [3 Dept. 2020]). Defendant has several jurisdictional issues winch would make aa 02845 inappropriate circumstances. General Law .Municipal Law §§ default judgment inappropriate under the For ·oeneral default judgmeñt under the circumstances. For example, Municipal example, a condition_precedent precedent the lawsuit, that a a notice be 50-i(l) requires, as to the that of be as a condition notice of claim claim to commencing· requires, lawsuit, commeñciñg 50-i(1) accrual v New upon the municipality within days after after the claim claim Brunson served upon the within served 90 days of the 90 accrual of (see, v. New (see, Brunson municipality of 22 of 33 EF2019-565 INDEX NO . EF2019-565 INDEX INDEX NO. NO. EF2019-565 [*~ILED; 3] 03:39 FILED: OTSEGO COUNTY COUNTY CLERK CLERK 07/17/2020 08/13/2020 03:39 04:38 PMJI PM 07/17/2020 CLERK COUNTY OTSEGO OTSEGO PD [FILED : 07/17/2020 RECEIVED NYSCEF: RECEIVED RECEIVED NYSCEF: NYSCEF: 07/17/2020 08/13/2020 NYSCEF DOC. DOC. NO. NO. 85 90 85 NYSCEF NO. NYSCEF DOC. York City Health & Hosps. Corp., 144 A.D.3d 854, 855, 42 N.Y.S.3d 34 [2nd Dept. 2016]). It It is i unclear after a b1ief hearing that plaintiffs met the condition precedent. after that plaintiffs met the condition precedent. briefhearing, unclear, Further, whi the court court isi required to give the who ar without the while le the required to give the plaintiffs, who are proceeding without the Further, plaintiffs, proceeding as istance ofof coun iderabl lib rtie on on procedural procedural matter their deci ion to the considerable liberties decisions to fi filel the counsel, el, con matters, , their assistance complaint complaint twice, serve erve the these second ond complaint complaint prior prior toto it its filing, and and enter ent r ofof aa bare bare verification verification twice, filing, after ling ofof the the complaint complaint all afoul of CPLR and a e eral week after the the second econd fifiling weeks all run run afoul of the the CPLR and created created several com1 finds, under th circum tance that that isi appropriate to permit record. The court under the confu ing record. The appropriate to permit finds, circumstances, confusing erve aa late an wer (see, (see, CPLR CPLR 3012[d])). Thi wil l allow the defendant an an opportunity opportunity toto serve late answer 3012[d])). This will allow the partie parties defendant -- in to conduct discovery di co ery and aod fully full litigate thi matter matter on on it in accord accord with with the the public public policy polic litigate this its merit merits to conduct fa ored by by the the Appellate Appellat Divi ( ee, Pr ferred Mut. In Co. vv DiLorenzo, DiLorenzo supra). upra). favored Division ion (see, Preferred Mut. Ins. . Co. Baseded on on the the forgoing, it it is i hhereby r by Ba forgoing, ORDERED ORDERED AND AND ADJUDGED ADJUDGED defendant shall hall file file an an defendant Dated: Dated: E E N T T that the the motion motion for for aa default default judgment judgment iis denied and and denied, that n wer by b July July 17, 2020. 17, 2020. Answer 2020 July( ?2020 July ooper town, ew York York New Cooperstown, R, E R, Hon. BRIAN D. BURNS cting Supreme upreme Court Court Justice Justice Acting TO: TO: Clerk of Court Clerk of the the Supreme Supreme Court B1ian Brian Kegelman Kegelman Joan man Joan Kegel Kegelman P ter W. . Hobaica E Peter Esq.q. Hobaica, 3 3 of 3 of 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.