Opinion
20290/06
02-09-2012
Paul Jerry Frederic and Gyliane P. Ade, Plaintiffs, v. Irvens Israel, Irvens Israel & Son, Inc., and TIA Rubbish Removal, Defendants.
Attorney for Plaintiff: Marjory Cajoux Attorney for Defendants: Debra M. Schoenberg Wolf Haldenstein Adler Freeman & Herz LLP
Attorney for Plaintiff: Marjory Cajoux
Attorney for Defendants: Debra M. Schoenberg Wolf Haldenstein Adler Freeman & Herz LLP
Carolyn E. Demarest, J.
Defendant T.I.A. of New York, Inc., (TIA), sued herein as T Ia Rubbish Removal, moves: (1) for an order, pursuant to CPLR 2201, 5015(a)(1), (4), vacating this court's order, dated June 17, 2010, which granted plaintiffs' motion for a default judgement against TIA on the ground that the court does not have personal jurisdiction over TIA; (2) upon vacatur of the default, for an order, pursuant to CPLR 3211(a)(8) and 306-b dismissing the action with prejudice for lack of personal jurisdiction and for failure to timely effect service; and (3) for an order pursuant to CPLR 2201 staying the inquest on damages pending determination of this motion. Plaintiffs cross-move for an order: (a) granting plaintiffs an extension of time to serve the defendant upon a showing of good cause or in the interest of justice pursuant to CPLR 306-b; (b) granting plaintiffs leave to amend the case caption; (c) granting plaintiffs leave to amend the verified complaint; and (d) compelling the defendant to release the names under which they are operating.
TIA's motion is granted to the extent that this court's order, dated June 17, 2010, granting plaintiffs' motion for a default judgment is vacated as to movant TIA only and the inquest will be deferred as to all defendants pending adjudication of the claims against TIA. However, the motion to dismiss is denied. Plaintiffs' cross-motion is granted to the extent that leave is granted to amend the caption to correctly state the name of the defendant TIA and to amend the complaint with respect to TIA only. Plaintiffs' motion is otherwise denied as academic. Plaintiffs' amended complaint is deemed served. The amended caption in this action shall read as follows:
Paul Jerry Frederic and Gyliane P. Ade, Plaintiffs,
- against
Irvens Israel and Irvens Israel & Son, Inc., and T.I.A. of New York Inc., Defendants.
Index No. 20290/06
In their original action, plaintiffs alleged in the complaint that they had entered into a contract with defendants Irvens Israel and Irvens Israel & Son, Inc., (Israel), for Israel to perform construction/renovation work at a property plaintiffs own in Brooklyn, but that Israel breached their agreement and caused damage to the premises (Kings County Index No. 20290/06). In March 2008, plaintiffs commenced a second action against TIA (naming the defendant as TIA Rubbish Removal) (Kings County Index No. 8321/08), claiming that TIA had left a large dumpster on plaintiffs' Brooklyn property as part of the work performed by Israel, and that TIA failed or refused to remove the dumpster until June 2007. In an affidavit of service, plaintiffs' process server alleged that he served TIA at 2559 Cypress Avenue, East Meadow, NY, by way of "affix and mail" service (CPLR 308[4]) on March 15, 2008. The action against Israel and the action against TIA were consolidated by the court in an order dated April, 2, 2008.
Israel filed a timely answer to the original action, but their counsel moved to be relieved in January, 2010, which motion was granted on February 24, 2010. The action was stayed to April 14, 2010, for appearance of new counsel, but there was no appearance of defendants on April 14, 2010 and the stay was vacated. On June 17, 2010, upon all defendants' failure to appear in opposition, plaintiffs' motion for default judgment was granted and an inquest was ordered as to all defendants.
TIA initially did not appear in the action, and, in an order dated June 17, 2010, this court granted plaintiffs' motion for a default judgment against both TIA and Israel and referred the matter to a Judicial Hearing Officer for an inquest with respect to damages. On August 11, 2010, counsel for TIA served a notice of appearance on plaintiff, which, as is relevant here, stated, "PLEASE TAKE NOTICE, that defendant TIA of New York, Inc., sued incorrectly herein as TIA Rubbish Removal, by its attorneys Wolf Haldenstein Adler Freeman & Herz LLP, hereby appears in the above-entitled action and demands that any and all papers in this action be served upon the undersigned at the address stated below." After this appearance, the inquest was adjourned several times. During this time, TIA did not file an answer or make any motions until it made its current motion, by order to show cause dated April 29, 2011, which stayed the inquest pending the determination of the motion.
This notice of appearance is dated August 10, 2010, but its affidavit of service, which is contained in the court file, is dated August 11, 2010.
In support of its motion, TIA has submitted an affidavit from Lisa Love, who identifies herself as TIA's office manager, and asserts that she is responsible for reviewing and authorizing TIA's work, including the delivery and pick-up of dumpsters. Love concedes that TIA had entered into contracts with Israel relating to the delivery and removal of dumpsters at plaintiffs' property, and had dropped off and removed three dumpsters in late November and early December 2005 without incident. According to Love, TIA dropped off the third dumpster on December 5, 2005, but never again heard from Israel. When plaintiff ultimately contacted TIA about removing the dumpster, TIA went to the location, but found that the dumpster was overloaded, making it too heavy to transport, and that a hole had been dug in front of the dumpster. TIA declined to remove the dumpster under such circumstances. Love asserts that TIA returned to the site several times, but each time found that nothing had been done to make it possible to transport the dumpster. Ultimately, TIA was informed by plaintiffs that Israel had abandoned the project, and Love asserts that TIA was forced to hire a company with a larger dumpster truck to drag TIA's dumpster off of plaintiffs' property.
With respect to plaintiffs' action, Love asserts that TIA is a corporation that has always operated as "T.I.A. of New York Inc.", that TIA has never operated or done business under the name TIA Rubbish Removal, and that TIA Rubbish Removal is not a legal entity, does not exist and has never existed. Love concedes that the address at which plaintiffs attempted to serve the complaint against TIA is her home address, at which TIA once had an office, but asserts that it had not operated out of that address since 2001. Love further concedes that she received the complaint, and brought it to an attorney (not TIA's current counsel), who, after Love explained TIA's corporate name and how the complaint was served, informed Love that TIA had no obligation to respond to the complaint. Love retained TIA's current counsel after TIA received the notice relating to the inquest. Love represents that this counsel requested that plaintiffs voluntarily vacate the default order. When plaintiffs refused to do so, TIA attempted to reach a settlement agreement with plaintiffs. Only after it became clear that the parties could not reach an agreement did TIA make this motion to vacate its default.
TIA, in arguing that the default should be vacated and its motion to dismiss should be granted, is correct that the affix and mail provisions of CPLR 308(4) relied upon by plaintiffs' process server in serving TIA are inapplicable to corporations (see White v Landau, 31 Misc 3d 1243 [A], 2011 NY Slip Op 51098 [Sup Ct New York County 2011]; Alexander, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C311:1; see also Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551, 552 [1984], affd 65 NY2d 865 [1985]). However, any impropriety in plaintiffs' service of process is irrelevant in light of the notice of appearance served by TIA's counsel on August 11, 2010, because, regardless of the propriety of service, "[a]n appearance by a defendant is deemed to be the equivalent of personal service of a summons upon him [or her] and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer" (Skyline Agency, Inc., v Coppotelli, 117 AD2d 135, 140 [1986]; National Loan Investors, L.P., v Piscitello, 21 AD3d 537, 537-538 [2005]). Such an appearance may be made by counsel (see National Loan Investors, L.P., 21 AD3d at 537-538; Skyline Agency, Inc., 117 AD2d at 140; CPLR 321).Here, the notice of appearance served on plaintiffs by TIA's counsel constitutes a formal appearance by TIA (see Matter of Nicola v Board of Assessors of Town of N. Elba, 46 AD3d 1161, 1162-1163 [2007]; CPLR 320[a], [b]; see also Countrywide Home Loans Servicing, LP v Alpert, 78 AD3d 983, 984 [2010]) and the service of this notice of appearance at a time after TIA's time to answer had expired without concomitantly submitting an answer or a motion to dismiss raising the objection to personal jurisdiction waived TIA's objection to the propriety of service and this court's personal jurisdiction over it (see Matter of Nicola, 46 AD3d at 1163; see also Countrywide Home Loans Servicing, LP, 78 AD3d at 984; Ohio Sav. Bank v Munsey, 34 AD2d 659 [2006]; National Loan Investors, L.P., 21 AD3d at 537-538). By voluntarily appearing without raising on objection to personal jurisdiction, after the time to answer had long expired, defendant submitted to the court's jurisdiction and may not, more than eight months after the service of the notice of appearance, challenge the court's authority to act based exclusively on the defective form of service (see Matter of Nicola, 46 AD3d at 1162-1163).
TIA nevertheless argues that an appearance after entry of a default judgment may not retroactively validate the judgment obtained in the absence of personal jurisdiction. While TIA is correct that such appearance, if made after a final judgment had been entered, would not validate a judgment that is void for lack of jurisdiction when entered (Irving Trust Co. v Seltzer, 265 App Div 696, 700-701 [1943]; but see Wells Fargo Bank Minn., N.A. v Dorestant, 36 AD3d 692, 693 [2007] (in which the appellate court found that prior appearances in which the defendant had sought affirmative relief from the court constituted a waiver of jurisdictional defects and validated the default judgment)), there has, as yet, been no judgment entered against TIA. Rather, this court has only issued an order granting plaintiffs' motion for a default judgment to the extent of referring the matter to a JHO for an inquest with respect to damages. This order is not a judgment (see Marsh v Johnston, 123 App Div 596, 597-598 [1908]; Concourse Super Serv. Sta. v Price, 33 Misc 2d 503, 503-504 [Sup Ct Bronx County 1962]; compare CPLR 2211, 2219, 2220 with CPLR 5011, 5016; see also Knapek v MV Southwest Cape, 110 AD2d 928, 929-930 [1985]), and as such, the rule limiting the effect of a notice of appearance made after the entry of judgment is inapplicable to the facts here (see Wilson v Teloptic Cable Constr. Co., Inc., 314 Ill App3d 107, 110-112, 731 NE2d 899, 902-903 [Ill App Ct 2000]). As the order of default is being vacated, as required (see Citibank, NA v Keller, 133 AD2d 63, 64 [2d Dept 1987]), defendant is free to litigate the matter on the merits.
TIA also argues that the action must be dismissed and the portion of plaintiffs' cross-motion to amend the caption and complaint must be denied because plaintiffs commenced the action against TIA Rubbish Removal, not T.I.A. of New York Inc., and failed to move to correct this error prior to the expiration of the statute of limitations. In support of this argument, TIA points to cases such as Maldonado v Maryland Rail Commuter Serv. Admin. (91 NY2d 467, 471-472 [1998]) and Kinder v Braunius (63 AD3d 885, 886 [2009]), that hold that dismissal of a case is required where the intended defendant has been misnamed and the plaintiff has failed to obtain personal jurisdiction over the correct defendant prior to the expiration of the statute of limitations. These cases are inapplicable here, however, since, as discussed above, TIA has waived any issue with respect to personal jurisdiction by appearing in the action (see Matter of Woicik v Town of E. Hampton, 207 AD2d 356, 357 [1994], lv denied 84 NY2d 813 [1985]). Moreover, while not correctly named and served as a corporation, TIA was clearly doing business as TIA Rubbish Removal, without reference to its corporate identity, as evidenced by numerous website listings annexed to plaintiff's cross-motion, and therefore the named defendant cannot be said to be a "nonexistent person" as in Maldonado and Kinder.
CPLR § 1024 expressly provides that where a party "is ignorant" of the name or identity of a proper party, it may proceed against the unknown party "by designating so much of his name and identity as is known" and, upon becoming aware of the correct name and correcting the information, "all prior proceedings shall be deemed amended accordingly." In Victor Auto Parts, Inc. v Cuva (148 Misc 2d 349, 351 [Sup Ct, Monroe County 1990]), in a case analogous to that here, the court held "one who deals with the business entity under its assumed name may, similarly, bring an action or proceeding against it in its assumed name.... The mere creation of another name does not create another entity." (See also, Anyika v Moneygram Payment Systems, Inc., 25 Misc 3d 1225(A) [Sup Ct, Kings County 2009]).
Furthermore, a misnomer such as that herein may be properly corrected in a motion pursuant to CPLR 305(c), which allows correction of a misnomer if a court has jurisdiction over the intended defendant and the "intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect . . . [and it] would not be prejudiced by allowing the amendment" (see Holster v Ross, 45 AD3d 640, 642 [2007][internal quotation marks omitted]). By filing a notice of appearance, TIA has waived any issue with respect to personal jurisdiction. TIA's office manager concedes that TIA received actual notice of the action in March 2008 and has admitted awareness of the misnomer in the notice of appearance. Although there may be no legal entity named "TIA Rubbish Removal," defendant TIA was clearly doing business as "TIA Rubbish Removal" as evidenced by that name on its website advertising. As Ms. Love acknowledges, plaintiffs' description of their claim in the complaint fairly apprised TIA that the action related to TIA's dumpster that had been left on plaintiffs' property and there had been telephone conversations between herself and plaintiffs prior to commencement of suit and well before the expiration of the statute of limitations. Under these circumstances, TIA was not prejudiced by the misnomer, and plaintiffs are entitled to amend their complaint to correct it (see Holster, 45 AD3d at 642-643; Dubar v Wilmorite, Inc., 298 AD2d 918, 919 [2002]; Ober v Rye Town Hilton, 159 AD2d 16, 19-21 [1990]; Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527 [1989]; Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483, 484-485).
While plaintiffs offer no explanation as to the reason to amend their complaint beyond correction of defendant's name, given the present posture of the case, in the absence of a showing by TIA that it would be prejudiced by such amendments or that the amendments are patently devoid of merit (see Barnes Coy Architects, P.C. v Shamoon, 53 AD3d 466, 467 [2008]; Lucido v Mancuso, 49 AD3d 220, 226-227 [2008]), plaintiffs are granted leave to amend the complaint to allege additional causes of action under different legal theories related to TIA's dumpster being left on plaintiffs' property. The Amended Complaint is deemed served and defendant shall serve and file its answer, or otherwise move to dismiss, within 20 days of service upon it of a copy of this decision with notice of entry.
It is noted that plaintiffs were not originally in privity with TIA as their contract was with Israel. They have now alleged an agreement with TIA "to collect and remove the construction dirt from plaintiff's property" (complaint ¶ 28) in support of their cause of action for breach of contract.
Although this court finds that TIA is not entitled to dismissal of the complaint, the circumstances here warrant the vacatur of its default, and an opportunity to answer the complaint. Love, TIA's office manager, has detailed how, after receiving the complaint in this action, she consulted with counsel, who informed her that TIA did not need to respond because it was not properly served and because it was not properly named in the complaint. Moreover, Love asserts, and plaintiffs essentially concede, that the delay from the time of TIA's appearance until it made the instant motion was the result of settlement negotiations between the parties (see Kreppein v Linda Kleban Mgt., 31 AD3d 275 [2006]; cf. American Shoring, Inc. v D.C.A. Constr., LTD, 15 AD3d 431 [2005]). These facts are sufficient to demonstrate a reasonable excuse for TIA's default (see D & R Globel Selections, S.L., v Pineiro, 90 AD3d 403 [2011]; Abel v Estate of Collins, 73 AD3d 1423, 1424-1425 [2010]; Estate of Witzigman v Drew, 48 AD3d 1172, 1173 [2008]). The alleged relationship between plaintiffs and TIA, and Love's affidavit detailing facts relating to the alleged overloading of the dumpster and the conditions of the property (which are supported, at least in part, by the photographs submitted by plaintiffs), sufficiently demonstrate a potentially meritorious defense to the action. Accordingly, TIA's motion to vacate this court's order of June 17, 2010, is granted as to TIA which shall serve and file an answer, or otherwise move, within 20 days. The motion to dismiss upon the grounds herein addressed is denied.
This constitutes the decision and order of the court.
ENTER,
J. S. C.