Opinion
Index No. 504654/2023
10-28-2024
Heriberto Hernandez, Plaintiff, v. Abdelalim Abdelbaky, Defendant.
Attorneys for Plaintiff Heba Abdelaal Special State Law Enforcement Defense Division New York City Law Department, Tort Division Corporation Counsel New York City Corporation Counsel Dominic Diprisco, Decolator, Cohen & Diprisco, LLP Attorney for Defendant David Marc Blum, David Blum & Associates.
Unpublished Opinion
Attorneys for Plaintiff Heba Abdelaal Special State Law Enforcement Defense Division New York City Law Department, Tort Division
Corporation Counsel New York City Corporation Counsel Dominic Diprisco, Decolator, Cohen & Diprisco, LLP
Attorney for Defendant David Marc Blum, David Blum & Associates.
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 21, 2024, under motion sequence number one, by defendant Abdelalim Abdelbaky for an order pursuant to CPLR 3215 dismissing the complaint of Heriberto Hernandez (hereinafter the plaintiff) and granting a default on the defendant's counterclaim. The motion is opposed.
-Notice of motion
-Affirmation in support
-Affidavit in support
Exhibits A
-Affirmation in opposition and in support of cross-motion under ms. seq. two.
Exhibits A-E
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on July 10, 2024, under motion sequence number two, by plaintiff Heriberto Hernandez for an order denying defendant Abdelalim Abdelbaky's motion for a default judgment as to defendant's counterclaims and pursuant to CPLR 2004, CPLR 2005, and CPLR 3012 (d) compelling defendant to accept service of plaintiff's reply to defendant's counterclaims as timely served nunc pro tunc. The motion is unopposed.
-Notice of motion
-Affirmation in support
Exhibits A-E
BACKGROUND
On February 13, 2023, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office (KCCO) . On May 17, 2023, the defendant joined issue by serving an answer with counterclaims.
The commencement papers were filed by plaintiff's attorneys Decolator, Cohen & Diprisco, LLP.
Defendant moved for an order pursuant to CPLR 3215 granting a default judgment on his counterclaims on the grounds that the plaintiff had failed to serve a reply to the counterclaims and also moved to dismiss the complaint. The parties appeared in Part 52 before Hon. Francois A. Rivera, on September 12, 2024, for oral argument on the above captioned matter.
LAW AND APPLICATION
Motion for a default judgment
On May 17, 2023, the defendant duly served the plaintiff with the answer with counterclaims by filing same with the KCCO through the NYSCEF system. The defendant also filed an affidavit of merit in support of the motion. The plaintiff did not timely interpose a reply to the counterclaims. On February 21, 2024 defendant filed the instant motion to dismiss the complaint and to grant a default on defendant's counterclaim. On July 3, 2024, the plaintiff filed an untimely reply to the defendant's counterclaims without leave of the Court or consent of the plaintiff.
Inasmuch as the defendant's motion for a default judgment was made before the plaintiff filed the untimely reply, there was no need for the defendant to reject the untimely reply (see Bachvarov v Khaimov, 224 A.D.3d 724, 726 [2d Dept 2024]) Thus, by filing a motion for default before the late reply was filed, the defendant did not waive the issue of late service of the reply by the plaintiff.
In opposition, the plaintiff failed to meet its burden of establishing a reasonable excuse. To successfully oppose the motion for leave to enter a default judgment based on the failure to timely serve a reply to the defendants' counterclaims, the plaintiff was "required to demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the counterclaims" (Diuccio v Soren, 96 A.D.3d 994, 995 [2d Dept 2012]; Maurice v Maurice, 78 A.D.3d 792, 793 [2d Dept 2010]).
"The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Nationstar Mtge., LLC v Ramnarine, 172 A.D.3d 886, 886 [2d Dept 2018]; see CPLR 2005). The court has discretion to accept law office failure as a reasonable excuse where that claim is "supported by a detailed and credible explanation" of the default at issue (Wells Fargo Bank, N.A. v Hakim, -N.Y.S.3d-, 2024 NY Slip Op 04479, *1 [2d Dept 2024], citing HSBC Bank USA, N.A. v Joseph, 209 A.D.3d 633, 634 [2d Dept 2022]; see CPLR 2005]. "Conclusory and unsubstantiated allegations of law office failure are not sufficient" (Nationstar Mtge., LLC v Ramnarine, 172 A.D.3d 886, 886 [2d Dept 2018]), quoting LaSalle Bank, N.A. v LoRusso, 155 A.D.3d 706, 707 [2d Dept 2017]. "Mere neglect is not a reasonable excuse" (HSBC Bank USA, N.A. v Joseph, 209 A.D.3d 633, 634 [2d Dept 2022]; Torres v Rely On Us, Inc., 165 A.D.3d 731, 731 [2d Dept 2018]). "Generally, a party may not rely on inadmissible hearsay to demonstrate the proffered excuse for a default" (Federal Natl. Mtge. Assn. v Bandhu, 214 A.D.3d 705 [2d Dept 2023]).
The Court notes that the suit was commenced by plaintiff with the law firm of Decolator, Cohen & Diprisco, LLP on February 13, 2023. On May 17, 2023, the defendant duly served the plaintiff with the answer with counterclaims. On July 3, 2024, the plaintiff filed an untimely reply to the defendant's counterclaims without leave of the Court or consent of the plaintiff. The reply was made by Muriel Good-Truant, Acting Corporation Counsel, on behalf of the plaintiff. On July 9, 2024, opposition to the defendant's instant motion for default judgment was filed by Heba Abdelaal (hereinafter Abdelaal), Assistant Corporation Counsel to Muriel Goode-Truant, the Acting Corporation Counsel .
It is noted that there was no explanation for the apparent change of attorney from the firm of Decolator, Cohen & Diprisco, LLP, the attorney of record, to the Acting Corporation Counsel. Nor was there a notice of change or substitution of counsel in accordance with CPLR 321.
Abdelaal's affirmation in opposition claimed that plaintiff had a reasonable excuse for the more than one year delay in replying to the defendant's counterclaims. According to Abdelaal, plaintiff prepared a request for legal assistance on March 28, 2024. Abdelaal explains that the delay in reply is due to law office failure "largely attributable to an apparent clerical error where the Office of Corporation Counsel did not receive [plaintiff's] request for legal representation until on or about June 4, 2024." Abdelaal also claimed that the delay was due to the high volume of work managed by the office.
Here, the plaintiff did not offer a detailed and substantiated explanation for the default. The contentions contained in the Abdelaal's affirmation are vague, conclusory, unsubstantiated, and not reasonable under the circumstances. Moreover, the excuse does not explain why the plaintiff's original counsel who commenced the lawsuit could not have interposed a timely reply. The reasons provided are insufficient to excuse the more than one year delay.
Since plaintiff Hernandez failed to establish a reasonable excuse for its default in appearing or answering the counterclaim, it is unnecessary to consider whether it established the existence of a potentially meritorious defense (see CPLR 5015 [a] [1]; Torres v Rely On Us, Inc., 165 A.D.3d 731, 733 [2d Dept 2018]). The inquest on defendant's counterclaims will be at the time of trial.
Motion to dismiss the complaint
"CPLR 2214 (a) provides that a notice of motion shall 'specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor'" (Abizadeh v Abizadeh, 159 A.D.3d 856, 857 [2d Dept 2018], citing Shields v Carbone, 99 A.D.3d 1100, 1102 [3d Dept 2012]).
Contrary to the requirements of CPLR 2214 (a), the defendant provided no law or argument in support of the branch of the defendant's motion seeking to dismiss the complaint. It is therefore denied.
Motion to compel acceptance of a late pleading
The plaintiff has moved for an order pursuant to CPLR 3012 (d) compelling the defendant to accept the plaintiff's reply to defendant's counterclaims nunc pro tunc. "In order to compel a party to accept an untimely pleading, the movant must demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding" (Bank of New York Mellon v Norton, 219 A.D.3d 680, 682-83 [2d Dept 2023], citing CPLR 3012 [d]). For the reasons previously stated, the plaintiff did not meet this burden.
CONCLUSION
The branch of the motion by defendant Abdelalim Abdelbaky for an order dismissing the complaint of Heriberto Hernandez is denied.
The branch of the motion by defendant Abdelalim Abdelbaky for an order pursuant to CPLR 3215 granting a default judgment on the counterclaim asserted against plaintiff Heriberto Hernandez is granted.
The motion by plaintiff Heriberto Hernandez for an order pursuant to CPLR 2004, CPLR 2005, and CPLR 3012 (d) compelling defendant to accept service of plaintiff's reply to defendant's counterclaims as timely served nunc pro tunc is denied.
The foregoing constitutes the decision and order of this Court.