Opinion
2015-06-17
In the Matter of Jerald MILLER, appellant, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, et al., respondents.
Jerald Miller, Brooklyn, N.Y., appellant pro se.
In a proceeding, inter alia, pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights dated March 19, 2012, dismissing the petitioner's administrative complaint, the petitioner appeals, by permission, from an order of the Supreme Court, Kings County (Lewis, J.), dated April 17, 2013, which denied his motion, denominated as one pursuant to CPLR 3211, among other things, to dismiss the answer of the respondent New York State Division of Human Rights.
ORDERED that the order is affirmed, with costs.
Contrary to the petitioner's contention, CPLR 3211 cannot be employed to request the “dismissal” of an answer that the petitioner contends was not timely served ( cf.CPLR 3211[b], authorizing a motion to dismiss a defense on the ground that it is not stated or has no merit). Even if the Supreme Court, in effect, deemed that branch of the petitioner's motion to be one for leave to enter a default judgment pursuant to CPLR 7804, the denial of that branch of the motion was a provident exercise of the court's discretion ( see Matter of Marseilles Leasing Co. v. New York State Div. of Hous. & Community Renewal, 140 A.D.2d 345, 346, 527 N.Y.S.2d 837).
Similarly, the petitioner cannot employ CPLR 3211 to seek the “dismissal” of a motion ( see Matter of Hansen v. Town of Red Hood, 28 Misc.3d 1236[A], 2010 N.Y. Slip Op. 51614[U], *6, 2010 WL 3607823 [Sup.Ct., Dutchess County] ) which, in this case, he contends was made on short notice in violation of CPLR 2214(b). In any event, the petitioner was not prejudiced by any such short notice ( see Piquette v. City of New York, 4 A.D.3d 402, 403, 771 N.Y.S.2d 365), as the record reveals that he had more than nine months to prepare and submit his opposition papers.