Opinion
Index No. 27567/2019E
01-31-2024
Joshua Jimenez, NERLINE PAULINO, and KIANA VENTURA, Plaintiff, v. Marvin Adu-Boahen, ALYSSA ZIMMERMAN, and EAN HOLDINGS, LLC, Defendant. KAYLA BATISTA, Plaintiff, v. EAN HOLDINGS, LLC, ELRAC, LLC, ENTERPRISE HOLDINGS, INC., MARVIN ADU-BOAHEN, and ALYSSA ZIMMERMAN, Defendants.
Plaintiff's counsel: Erik Ikhilov, Esq. Ikhilov & Associates Cynthia Maria Attard, Esq. Defendant's Counsel: Richard E. Noll, Esq. The Noll Law Firm PC Michael V. Sclafani, Esq. Reardon & Sclafani PC Joined Action Plaintiff's Counsel: Lawrence D. Lissauer, Esq. Finkelstein & Partners
Unpublished Opinion
Plaintiff's counsel: Erik Ikhilov, Esq. Ikhilov & Associates
Cynthia Maria Attard, Esq.
Defendant's Counsel: Richard E. Noll, Esq. The Noll Law Firm PC
Michael V. Sclafani, Esq. Reardon & Sclafani PC
Joined Action Plaintiff's Counsel: Lawrence D. Lissauer, Esq. Finkelstein & Partners
Bianka Perez, J.
The following were read on this motion and cross-motion (Seq 2) for DEFAULT JUDGMENT submitted on December 6, 2023
Notice of Motion - Exhibits and Affidavits Annexed NYSCEF No(s). 27-37
Notice of Cross-Motion - Exhibits and Affidavits Annexed NYSCEF No(s). 49-60
Affirmation in Opposition to Cross-Motion and Exhibits NYSCEF No(s). 62-63
Cross-Motion Affirmation in Reply NYSCEF No(s). 64-65
Upon the foregoing papers, plaintiffs Joshua Jimenez, Nerline Paulino, and Kiana Ventura in "Action 1" move under Index No. 27567/2019E for a default judgment against Defendant ALYSSA ZIMMERMAN (hereinafter "Zimmerman") based upon her failure to answer the complaint or otherwise appear in the action. Defendant Zimmerman cross moves for an Order dismissing plaintiffs' complaint on the ground that the Court does not have jurisdiction over the defendant Zimmerman and severing defendant Zimmerman from this action. Plaintiffs oppose the cross-motion. The motion and cross-motion are decided in accordance herewith.
Moving plaintiffs commenced this action to recover for personal injuries sustained in a motor vehicle accident on July 8, 2018. Plaintiffs filed the summons and complaint on June 27, 2019 (NYSCEF Doc #1). While the affidavit of service states defendant Zimmerman, a resident of Pennsylvania, was served pursuant to Vehicle and Traffic Law (VTL) §253 on October 18, 2019 (NYSCEF Doc #4), there is no affidavit of compliance as required under VTL §253. To date, no answer has been filed under Index No. 27567/2019E ("Action 1") on behalf of defendant Zimmerman. An Answer was later filed for defendant Zimmerman in a related action, under Index No. 802884/2021E ("Action 2"), on July 12, 2021.
On, December 21, 2021, under Index No. 27567/2019E, a response to plaintiffs' combined notice for discovery and inspection demands was made on behalf of defendant Zimmerman (NYSCEF Doc. # 33, Exh. E). In addition, a Request for a Preliminary Conference was filed on behalf of defendant EAN Holdings, LLC and defendant Zimmerman on June 30, 2022 (NYSCEF Doc # 13). On July 13, 2022, a motion was filed requesting a joint trial and discovery on behalf of defendants ELRAC & Enterprise and Ean Holdings LLC in "Action 1" and defendants Zimmerman and EAN Holdings, LLC in "Action 2." The Court notes that ELRAC & Enterprise is a defendant in "Action 2," not "Action 1." Nevertheless, a Court Order dated October 4, 2022, consolidated Index No. 27567/2019E ("Action 1") with Index No. 802884/2021E ("Action 2") for joint trial and discovery.
Discussion
Motion for Default
CPLR 3215(a) allows a plaintiff to move for a default judgment based on defendant's failure to appear or to plead or proceed to trial. CPLR 3215(c) provides that "if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed", (see Herzbrun v. Levine, 23 A.D.2d 744 [1st Dep't 1965]; Opia v. Chukwu, 278 A.D.2d 394 [2d Dep't 2000]; Sanders v. Marino Falcone Brick Contracting, Inc...
A plaintiff moving to circumvent mandatory dismissal of the action must demonstrate that it had a reasonable excuse for the delay in moving for the entry of a default judgment and that it has a potentially meritorious action, (see Selective Auto Insurance Company of New Jersey v. Nesbitt, 161 A.D.3d 560 [1st Dep't 2018]). The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court, (see Giglio v. NTIMP, Inc., 86 A.D.3d 301 [2d Dep't 2011]).
Default judgment is inappropriate where a defendant has "made an informal appearance in the action and was therefore technically not in default," (Taylor v. Taylor, 64 A.D.2d 592 [1st Dep't 1978]). "[I]n addition to the formal appearances listed in CPLR 320(a), the law continues to recognize the so-called 'informal appearance'," (Deutsche Bank National Trust Company v. Hall, 129 N.Y.S.3d 146, 149 [2d Dep't 2020], quoting Siegel & Connors, NY Prac. 112). A formal or informal appearance may be found where a defendant "actively litigate[d] the action before the Supreme Court or participate[d] in the action on the merits," (Wells Fargo Bank, N.A. v. Martinez, 121 N.Y.S.3d 248, 250 [1st Dep't 2020]). "However, an informal appearance may occur even where the defendant is not served with process," (Travelon, Inc. v. Maekitan, 215 A.D.3d 710, 711 [2d Dep't 2023], see also Rubino v. City of New York, 145 A.D.2d 285 [1st Dep't 1989]). Here, while defendant Zimmerman did not appear formally by filing an Answer in "Action 1," she did respond to plaintiffs' combined demands in the December 21, 2021 document (NYSCEF Doc. #33, Exh. E) and in the Request for a Preliminary Conference on June 30, 2022 (NYSCEF Doc. #13). Furthermore, defendant Zimmerman appears to be represented in "Action 1" as NYSCEF case details lists Reardon & Sclafani PC as her counsel in the matter (NYSCEF Doc. #32, Exh. D). This Court finds that defendant Zimmerman's participation in the action amounts to an informal appearance and that her informal appearance negates a finding of default judgment as to defendant Zimmerman.
Cross-Motion to Dismiss
In her cross-motion to dismiss, defendant Zimmerman contends that service "was defective and did not confer jurisdiction by this court over her person," (NYSCEF Doc. #49). "[A]n appearance of the defendant is equivalent to personal service of the summons upon him [or her], unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in rule 3211," (Travelon, Inc. v. Maekitan, at 712 [alterations in the original]). "[A] defendant may raise an objection to personal jurisdiction, either by pleading the objection in his answer as a defense or by timely motion to dismiss on that ground," (Al-Dohan v. Kouyoumjian, 93 A.D.2d 714, 715 [1st Dep't 1983]). An objection to jurisdiction is waived when a party fails to "timely challenge it in an answer or a pre-answer motion to dismiss in accordance with the CPLR," (Chao Jiang v. Ping An Insurance, 179 A.D.3d 517, 518 [1st Dep't 2020], see also CPLR 3211[e]). Where a defendant is arguing lack of personal jurisdiction due to improper service, the objection is waived if, "having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading," (CPLR 3211[e]). Here, defendant Zimmerman did not raise her objection to service via pre-answer motion, nor did she serve an Answer asserting an affirmative defense of lack of jurisdiction. Additionally, as discussed above, defendant Zimmerman's actions were found to amount to an informal appearance.
"When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court," (Taveras v. City of New York, 108 A.D.3d 614, 617 [2d Dep't 2013]). "[T]he defenses of personal jurisdiction and the statute of limitations, available to a defendant who appears informally, must be timely asserted, just as in a formal appearance, or they are otherwise waived," (Rubino v. City of New York at 289). Where a defendant has "engaged in significant activity after his statutory time to answer had expired, which amounted to an informal appearance the defendant waived any objection on the ground of lack of personal jurisdiction," (JPMorgan Chase Bank, National Association v. Lee, 129 N.Y.S.3d 507, 509 [2d Dep't 2020]).
Defendant Zimmerman informally appeared in the action in her 2021 response to plaintiffs' demands and her 2022 request for a preliminary conference. She did not indicate any objection to personal jurisdiction at any point until the present motion (see Feola v. Moore McCormack Lines, Inc., 173 A.D.2d 256 [1st Dep't 1991]). Due to defendant Zimmerman's informal appearance in the matter and her significant delay in raising the objection, the Court deems defendant Zimmerman to have waived her objection to personal jurisdiction (see id.). Thus, defendant's cross-motion is denied.
Additionally, "[T]here is a strong public policy in favor of resolving cases on the merits," (Marine v. Montefiore Health Systems, Inc., 9 N.Y.S.3d 580, 581 [1st Dep't 2015]). Courts have found no abuse of discretion where default judgment was refused for untimely filing of an answer where there was no prejudice to the plaintiff and no "circumstances warranting deviation from New York's strong public policy in favor of litigating matters on the merits," (Silverio v. City of New York, 698 N.Y.S.2d 669 [1st Dep't 1999]). In addition, CPLR 3012 specifically allows the Court to grant an extension of time to file an answer, "Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default," (CPLR 3012[d]). Courts have held that a party need not apply direction for such an extension, "[I]n our view the court's discretionary authority to grant such relief sua sponte is in keeping with the spirit and purpose of this amendment to the CPLR, which generally views with liberality the excusing of non-prejudicial defaults," (Mufalli v. Ford Motor Co., 481 N.Y.S.2d 703, 705 [1st Dep't 1984]). Here, the Court finds no prejudice to the plaintiffs from the delay in filing of defendant Zimmerman's Answer in "Action 1", and further recognizes the strong public policy in favor of resolving cases on the merits, and accordingly grants sua sponte, an extension for defendant Zimmerman to file an answer without the affirmative defense of lack of jurisdiction.
Accordingly, it is hereby
ORDERED, that the Plaintiffs' motion for default judgment against defendant ALYSSA ZIMMERMAN is denied, it is further
ORDERED, that defendant ALYSSA ZIMMERMAN's cross-motion to dismiss the action as against her is denied, and it is further
ORDERED, that defendant ALYSSA ZIMMERMAN's time to serve and file an Answer is extended to twenty (20) days from the date of service of this Decision and Order with Notice of its Entry.
This constitutes the decision and order of the Court.