Opinion
Index No. 153642/2022 Motion seq. No. 001
03-22-2023
CHARLES GREGORY GRISSOM, Plaintiff, v. THE CITY OF NEW YORK, NYPD POLICE OFFICER STEVEN CRUZ, NYPD POLICE OFFICER PAUL SCLAFANI, NYPD POLICE OFFICERS JOHN/JANE DOES Defendants.
Unpublished Opinion
MOTION DATE 03/08/2023
PRESENT: HON. JUDY H. KIM JUSTICE
DECISION+ ORDER ON MOTION
HON. JUDY H. KIM JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21,22, 23, 24 were read on this motion for _JUDGMENT - DEFAULT.
Upon the foregoing documents, plaintiffs motion for a default judgment as to New York City Police Department ("NYPD") Officers Steven Cruz and Paul Sclafani is denied and defendants' cross-motion to compel plaintiff to accept their late answer is granted.
Plaintiff commenced this action by filing a summons and verified complaint on April 28, 2022 (NYSCEF Doc. No. 1). Officers Cruz and Sclafani were served, pursuant to CPLR §308(2), on May 11, 2022 (NYSCEF Doc. Nos. 3, 5). An affidavit of service attesting to service upon Cruz was filed with the Court on May 19, 2022 while an affidavit of service attesting to service on Sclafani was filed on December 19, 2022.
Defendant the City of New York (the "City") interposed a verified Answer on July 20, 2022 (NYSCEF Doc. No. 16). On February 6, 2023, the City filed an Amended Answer on behalf of itself and Officers Cruz and Sclafani.
Plaintiff filed the instant motion on January 9, 2023. The City opposes the motion and cross-moves for an order compelling plaintiff to accept its February 6, 2023 Amended Answer.
DISCUSSION
That branch of plaintiffs motion for a default judgment as against the officers Cruz and Sclafani is denied. To establish his entitlement to a default judgment, plaintiff must submit proof of: "valid service of process, the facts constituting the causes of action, and the [defendants'] default" (First Fed. Sav. &Loan Assn, of Charleston v Tezzi, 164 A.D.3d 758, 759-60 [2nd Dept 2018] [internal citations omitted]).
Plaintiff has not established Sclafani's default. Where, as here, service was effected pursuant to CPLR §308(2), "proof of such service shall be filed with the clerk of the court... within twenty days of... delivery or mailing, whichever is effected later," and "service shall be complete ten days after such filing" (CPLR § 308[2]). In this case, the relevant affidavit of service was not filed within twenty days after service and, therefore, at the time this motion was made service had yet to be completed on Sclafani (First Fed. Sav. &Loan Assn, of Charleston v Tezzi, 164 A.D.3d 758, 759-60 [2d Dept 2018]). As Sclafani's his time to answer the complaint has not started to run he has not defaulted (Id.).
The Court also denies plaintiffs motion as to Cruz. Even assuming plaintiff has satisfied the requirements of CPLR §3215, the City's opposition offers both a reasonable excuse for its delay in interposing an Answer on Cruz's behalf as well as a potentially meritorious defense. Specifically, defendants have set forth a reasonable excuse for the delay due to its need to determine whether Corporation Counsel could represent Cruz and Sclafani pursuant to General Municipal Law §50-k(2) (Myers v City of New York, 110 A.D.3d 652 [1st Dept 2013] ["City's delay in answering on behalf of the individual defendants was reasonable in that it was due to its investigation of its obligation to defend them"]). The City has also established potential meritorious defenses, as reflected in its answer (See Alexandre v Martinez, 161 A.D.3d 633 [1st Dept 2018]). Accordingly, plaintiff's motion is denied.
Finally, in light of the reasonable excuse and potentially meritorious defense proffered by the City as well as "the strong public policy of this state to dispose of cases on their merits" (HSBC USA v Lugo, 127 A.D.3d 502, 503 [1st Dept 2015] [internal citations omitted]), the Court grants defendants' cross-motion to compel plaintiff to accept their late answer.
Accordingly, it is
ORDERED that plaintiffs motion for a default judgment against Cruz and Sclafani is denied; and it is further
ORDERED that defendants' cross-motion to compel plaintiff to accept its Amended Answer filed on February 6, 2023 (NYSCEF Doc. No. 16) is granted and its Amended Answer is deemed served and filed nunc pro tunc; and it is further
ORDERED that counsel for the City of New York shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141 B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "efiling" page on this court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that counsel for the City of New York shall serve a copy of this decision and order upon plaintiff, with notice of entry, within fifteen days of the date of this decision and order.
This constitutes the decision and order of the Court