Opinion
Index No. 502248/2021 Motion Seq. Nos. 03 04 05
01-19-2024
MALCOLM M. KING, Plaintiff, v. FLUSHING ROOSEVELT ASSOCIATES, LLC, NEW YORK FOOD COURT, INC., NEW YORK DIY KTV, INC., and YONG GROUP, INC., Defendants. FLUSHING ROOSEVELT ASSOCIATES, LLC, Third-Party Plaintiff v. NEW YORK FOOD COURT, INC., Third-Party Defendant. NEW YORK FOOD COURT, INC., Second Third-Party Plaintiff v. NEW YORK DIY KTV, INC., Second Third-Party Defendant. FLUSHING ROOSEVELT ASSOCIATES, LLC, Third Third-Party Plaintiff v. YONG GROUP, INC., Third Third-Party Defendant.
Unpublished Opinion
DECISION/ORDER
KATHERINE A. LEVINE, Justice.
The following e-filed papers read herein:
NYSCEF Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
99, 100, 102, 105, 106, 108,114-117, 119-121
Opposing Affidavits (Affirmations)
162, 176
Affidavits/ Affirmations in Reply
162, 166, 170, 187
Other Papers:
Upon the foregoing papers, defendant/third third-party defendant Yong Group, Inc., (Yong Group) moves (in motion [mot.] sequence [seq.] 03) for an order, pursuant to CPLR §§ 1003 and 3025, dismissing the complaint of plaintiff Malcom M. King (plaintiff). Yong Group also moves (in mot. seq. 04), pursuant to CPLR §§ 1003, 3025, 3211 (a) (8) and 311, to dismiss defendant/third-party plaintiff/third third-party plaintiff Flushing Roosevelt Associates LLC's (Flushing Roosevelt) third third-party action as against it. Flushing Roosevelt cross-moves (in mot. seq. 05) for a default judgment against Yong Group.
BACKGROUND
Plaintiff initially commenced this personal injury action against defendants Flushing Roosevelt and Thomas Fan by a complaint dated January 28, 2021 (NYSCEF Doc No. 1). Flushing Roosevelt filed a verified answer and an amended verified answer on March 24,2021, and March 25,2021, respectively (NYSCEF Doc Nos. 5, 7). On June 15, 2021, the action was discontinued as against Thomas Fan pursuant to a stipulation of partial discontinuance signed by all parties (NYSCEF Doc No. 16). On July 19, 2021, plaintiff filed a supplemental summons and amended complaint adding New York Food Court, Inc., (NYFC) as a party defendant (NYSCEF Doc Nos. 20-21).
On or about July 20, 2021, Flushing Roosevelt commenced a third-party action against NYFC (NYSCEF Doc No. 17-23). On February 18, 2022, NYFC filed a verified answer to the third-party complaint (NYSCEF Doc No. 27). On or about March 15, 2022, NYFC commenced a second third-party action against New York DIY KTV, Inc. (NYSCEF Doc Nos. 34-43). Plaintiff subsequently (on or about March 22, 2022) filed a second supplemental summons and amended complaint adding New York DIY KTV, Inc. as a party defendant (NYSCEF Doc No. 44-45). By order of this court dated December 12, 2022, a default judgment was entered against New York DIY KTV, Inc. in favor of plaintiff and NYFC for its failure to answer their respective pleadings (NYSCEF Doc Nos. 95-96). On or about November 23, 2022, Flushing Roosevelt commenced a third third-party action against Yong Group. Shortly thereafter, on or about December 1, 2022, plaintiff filed a third amended verified complaint, adding Yong Group as a party defendant to the main action.
Yong Group's Motions (Mot. Seq. Nos. 03 and 04)
Yong Group now seeks (in mot. seq. 03) dismissal of plaintiff s action as against it, arguing that, pursuant to CPLR § 1003 and § 3025, plaintiff could only amend his pleadings to add Yong Group as a defendant by leave of court (NYSCEF Doc Nos. 99-104). Yong Group also seeks (in mot. seq. 04) dismissal of Flushing Roosevelt's third third-party action, arguing that, pursuant to CPLR § 1003 and § 3025, Flushing Roosevelt could only add Yong Group as a third-party defendant by leave of court; and further arguing that personal jurisdiction over Yong Group was not obtained under CPLR § 3211 (a) (8) and § 311 by service of process upon Yong Group's receptionist (NYSCEF Doc Nos. 105-112).
Pursuant to CPLR 3211 (a) (8), "[a] party may move for judgment dismissing one or more causes of action asserted against him [ or her] on the ground that the court has not jurisdiction of the person of the defendant." CPLR § 311 authorizes personal service upon a corporation by delivery of the summons to "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." (emphasis added). New York Business Corporation Law§ 304 further designates the Secretary of State as the agent for every domestic and authorized foreign corporation, upon whom process against the corporation may be served in the manner prescribed by Business Corporations Law§ 306. Thus, "'[s]ervice of process on a corporate defendant by serving the summons and complaint on the Secretary of State pursuant to Business Corporation Law§ 306 is valid service"' (Perkins v 686 Halsey Food Corp., 36 A.D.3d 881, 881 [2d Dept 2007], quoting Shimel v 5 S. Fulton Ave. Corp., 11 A.D.3d 527, 527 [2d Dept 2004]; Green Point Sav. Bank v 794 Utica Ave. Realty Corp., 242 A.D.2d 602, 602 [2d Dept 1997]).
Furthermore, "[t]he burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff." (U.S. Bank N. A. v Logan Estates, LLC, 213 A.D.3d 792, 793 [2d Dept 2023]; see JPMorgan Chase Bank, N.A. v Grinkorn, 172 A.D.3d 1183, 1185 [2d Dept 2019]). "A process server's affidavit of service constitutes prima facie evidence of proper service." (id.; see JPMorgan Chase Bank, N.A., 172 A.D.3d at 1185).
Yong Group argues that it is not subject to the court's jurisdiction in the third third-party action. In support of this contention, it contends that the third third-party summons and complaint were only served upon its receptionist on January 3, 2023, and that said person is not an authorized agent for service of process under CPLR §311. In this regard, Yong Group refers to an affidavit of service dated January 5, 2023, which states that on January 3, 2023, the process server delivered a copy of Flushing Roosevelt's third third-party summons and complaint to a person named Ethan, known to be the receptionist at Yong Group's place of business (NYSCEF Doc No. 97). Yong Group proffers the affidavit of its president, Yong Qin Li, who avers that "the receptionist who was served with the papers was not authorized to accept legal papers on behalf of Yong Group" (NYSCEF Doc No. 106 ¶ 19 [emphasis in original]).
In opposition, Flushing Roosevelt maintains that service of process was proper and proffers an affidavit of service establishing that Yong Group was served with the third third-party summons and complaint by delivering and leaving two copies of same with an authorized agent in the Office of the New York Secretary of State on December 5, 2022 and paying the applicable fee (NYSCEF Doc No. 87). Contrary to Yong Group's contention, Flushing Roosevelt maintains that service was properly effectuated upon it via service upon the Secretary of State and that a copy of the papers was merely left with Yong Group's receptionist as a courtesy. Since Yong Group does not dispute that service of process was made upon it via service upon the Secretary of State in accordance with Business Corporation Law § 306, the portion of its motion seeking dismissal of Flushing Roosevelt's third third-party action against it for lack of personal jurisdiction is denied (see Perkins, 36 A.D.3d at 881 ["service was complete upon delivery of process to the Secretary of State"]; Shimel, 11 A.D.3d at 527).
Both Yong Group's original motion and the reply thereto do not address the affidavit of service of the third third-party summons and verified third third-party complaint upon Secretary of State on December 5, 2022.
Yong Group also seeks to dismiss Flushing Roosevelt's third third-party action as against it, pursuant to CPLR § 1003 and § 3025, on the ground that plaintiff could only amend its pleadings to add Yong Group as a defendant by leave of court after the expiration of the twenty-day statutory timeframe following the service of the summons or responsive pleading. Yong Group bases its motion for dismissal of plaintiff's direct action (mot. seq. 03) on the same grounds.
A third-party complaint under CPLR § 1007 is warranted where the third-party claim arises from the liability asserted against the defendant and third-party plaintiff in the main action (see Lucci v Lucci, 150 A.D.2d 649, 650 [2d Dept 1989]). A third-party claim is maintainable even where the third-party plaintiff denies liability in the main action (see George Cohen Agency, Inc. v Donald S. Perlman Agency, Inc., 51 N.Y.2d358, 361 [1980]). Here, Flushing Roosevelt's third third-party indemnification and 'contribution claims against Yong Group arise from and are conditioned upon the liability asserted against Flushing Roosevelt in plaintiffs main action. As such, Flushing Roosevelt properly commenced a third-party action against Yong Group pursuant to CPLR § 1007 and is not bound by the CPLR §1003 timeframe (see Qosina Corp, v C &N Packaging, Inc., 96 A.D.3d 1032,1035 [2d Dept 2012]). Furthermore, there is no restriction on successive third-party actions under the CPLR (see Bevilacqua v Bloomberg, L.P., 70 A.D.3d 411, 412-413 [1st Dept 2010]). Accordingly, the balance of Yong Group's motion seeking dismissal of Flushing Roosevelt's third third-party action is denied.
The court now turns to Yong Group's motion (mot. seq. 03) seeking to dismiss plaintiffs direct claims against it. Pursuant to CPLR § 1009, a plaintiff may amend its complaint without leave of court to include a direct claim against a third-party defendant before the expiration of twenty days after service of the answer to the third-party complaint on the plaintiff (CPLR § 1009; see Guarino v 233 E. 69th St. Owners Corp., 14 A.D.3d 652, 653 [2d Dept 2005] [" plaintiff properly commenced a direct action against it by the service of an amended complaint naming it as a defendant, after the service of the third-party complaint upon it and before it served a third-party answer"]; see also Bevilacqua6t v Bloomberg, L.P., 70 A.D.3d 411, 412-413 [1st Dept 2010]).
Here, Flushing Roosevelt commenced a third third-party action against Yong Group on or about November 23, 2022, and about a week later, on or about December 1, 2022, plaintiff filed a third amended verified complaint naming Yong Group as a defendant. It is undisputed that Yong Group had not yet served a third third-party answer at the time plaintiff amended his complaint. Therefore, the CPLR § 1009 twenty-day post-answer window for plaintiff amending his complaint without leave of court to include a direct claim against Yong Group has not yet closed. Accordingly, Yong Group's motion seeking dismissal of plaintiffs direct action as against it for failure to comply with CPLR § 1003 and § 3025 is denied.
An affidavit of service, dated December 7,2022, indicates that service upon Yong Group was made by delivering copies of plaintiffs third supplemental summons and third amended verified complaint to the Secretary of State on December 5, 2022 (NYSCEF Doc No. 85-86, 88).
Flushing Roosevelt's Cross Motion (Mot. Seq. No 05)
Lastly, the court turns to Flushing Roosevelt's cross-motion (mot. seq. 05) for a default judgment against Yong Group. Specifically, Flushing Roosevelt seeks a default judgment against Yong Group pursuant to CPLR § 3215 (a) for its failure to interpose a timely answer to its third third-party complaint (NYSCEF Doc Nos. 114-128).
CPLR § 3211 (e) permits a party to move for dismissal of an action against it on any of the CPLR § 3211 (a) enumerated grounds, at any time prior to the expiration of the party's time to answer. Pursuant to CPLR § 320 (a), a defendant served by delivery to a state official authorized to receive service on its behalf has thirty (30) days to interpose an answer or make a pre-answer motion.
As noted above, Yong Group was served with the third third-party summons and complaint on December 5, 2022 via service upon the Secretary of State pursuant to CPLR § 311 and Business Corporation Law § 304 (NYSCEF Doc No 87). Yong Group filed its motion to dismiss the third third-party action (mot. seq. 04) on February 1,2023, more than thirty days after it was served with the third third-party summons and complaint. In its opposition to the default cross motion, Yong Group relies on the January 3, 2023 delivery of the third third-party summons and complaint to its receptionist as the date commencing its timeframe to answer (see reply affirmation of counsel for Yong Group ¶31, NYSCEF Doc Nos. 97, 176). However, as service upon Yong Group was complete on December 5, 2022 when the Secretary of State was served, Yong Group had 30 days from that date to answer.
However, in opposition to the default motion, Yong Group notes there was ongoing communication between counsel negotiating a potential stipulation to extend Yong Group's time to answer. Shortly after negotiations proved to be unsuccessful, Yong Group filed what it believed to be a timely pre-answer motion to dismiss, based on its misapprehension of the date service of process was effectuated by Flushing Roosevelt (on its receptionist) (NYSCEF Doc No. 176 ¶¶ 33-39).
Under these circumstances, the court is mindful of the strong public policy of resolution of cases and controversies on the merits, rather than on default (see Browne v Lyft, Inc., 219 A.D.3d 443, 445 [2d Dept 2023]; Nowakowski v Stages, 179 A.D.3d 822, 824 [2d Dept 2020]). Particularly where the default was not willful, and no prejudice would result from extending the time for a party to answer, the court may disregard the minor untimeliness of the pre-answer motion to dismiss, and permit the movant Yong Group to interpose an answer pursuant to CPLR § 3211 (f) (see CPLR § 2004; see also Lawrence v Celtic Holdings, LLC, 85 A.D.3d 874, 875 [2d Dept 2011]; Falla v Keel Holdings, LLC, 50 A.D.3d 844, 845 [2d Dept 2008]). Based upon the foregoing, Flushing Roosevelt's cross motion for a default judgment against Yong Group is denied.
Accordingly, it is hereby
ORDERED that Yong Group's motion (mot. seq. 03) to dismiss plaintiffs direct action as against it is denied; and it is further
ORDERED that Yong Group's motion (mot. seq. 04) to dismiss Flushing Roosevelt's third third-party complaint as against it is denied; and it is further
ORDERED that Flushing Roosevelt's cross motion for a default judgment to be entered against Yong Group is denied; and it is further
ORDERED that Yong Group is permitted to interpose an answer within 20 days after service of notice of entry of this order.
This constitutes the decision and order of the court.