Opinion
315 CA 21-00291
07-08-2022
Abla MOHAMED, Plaintiff-Respondent, v. Hani ABUHAMRA, et al., Defendants, and Shaker Abuhamra, Defendant-Appellant.
LIPPES MATHIAS LLP, BUFFALO (THOMAS J. GAFFNEY OF COUNSEL), FOR DEFENDANT-APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LIPPES MATHIAS LLP, BUFFALO (THOMAS J. GAFFNEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by striking the language "306-b and" from the first ordering paragraph and vacating the third ordering paragraph and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: In January 2018, plaintiff commenced this RPAPL article 15 action. In November 2020, Shaker Abuhamra (defendant) moved to dismiss the complaint against him, contending that he was never properly served with the complaint pursuant to CPLR 306-b (see CPLR 3211 [a] [8] ). In opposing the motion, plaintiff's attorney asserted that she had delivered copies of the summons and complaint to defendant's then-attorney, who accepted service on defendant's behalf, and that defendant had been personally present at the time. Responding to a contention that was presumably raised in documents not submitted to this Court, plaintiff's attorney further opposed the motion insofar as it purportedly sought dismissal of the complaint based on plaintiff's failure to move for a default judgment within one year after a default, as required by CPLR 3215 (c). According to counsel, she had reached an agreement with defendant's current attorney pursuant to which he would not challenge service and she would not move for a default judgment. Plaintiff also cross-moved for an extension of the time for service under CPLR 306-b. Supreme Court denied the motion and the cross motion. Defendant appeals.
As a preliminary matter, we note that defendant failed to include in the record on appeal the operative complaint and its attached exhibits. Contrary to plaintiff's contention, we need not dismiss the appeal, however, inasmuch as meaningful appellate review of some of the legal issues is not "impossible" ( Mergl v. Mergl , 19 A.D.3d 1146, 1147, 796 N.Y.S.2d 823 [4th Dept. 2005] ; cf. BL Doe 2 v. Fleming , 199 A.D.3d 1419, 1419, 154 N.Y.S.3d 588 [4th Dept. 2021] ).
Addressing the issues concerning default judgment first, we conclude that the court properly determined that dismissal pursuant to CPLR 3215 (c) was not warranted. "If [a] plaintiff fails to take proceedings for the entry of judgment within one year after [a] 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" (id. ). " ‘The one exception to the otherwise mandatory language of CPLR 3215 (c) is that the failure to timely seek a default on an unanswered complaint ... may be excused if sufficient cause is shown why the complaint should not be dismissed’ " ( U.S. Bank, N.A. v. Reamer , 187 A.D.3d 1650, 1650, 133 N.Y.S.3d 707 [4th Dept. 2020] ). Sufficient cause exists where " ‘(1) the failure to seek a default judgment within one year after the default is excusable[,] and (2) the cause of action is meritorious’ " ( Fuentes v. Hoffman , 118 A.D.3d 1324, 1325, 987 N.Y.S.2d 758 [4th Dept. 2014] ).
Here, contrary to defendant's contention, plaintiff's failure to seek a default judgment within one year of defendant's default is excusable under the facts of this case. With respect to "whether plaintiff established that [she] had a potentially meritorious claim" ( U.S. Bank, N.A. , 187 A.D.3d at 1651, 133 N.Y.S.3d 707 ), we note that defendant failed to submit a sufficient record for us to review that issue, and defendant, " ‘as the appellant, ... must suffer the consequences’ of submitting an incomplete record" ( Matter of Rodriguez v. Ward , 43 A.D.3d 640, 641, 842 N.Y.S.2d 622 [4th Dept. 2007] ; see Curto v. Zittel's Dairy Farm , 106 A.D.3d 1482, 1484, 966 N.Y.S.2d 311 [4th Dept. 2013] ).
With respect to the issue of service, we conclude that the court erred in denying defendant's motion without first holding a hearing. Although defendant does not dispute that plaintiff's attorney served the summons and complaint on defendant's then-attorney, he contends that he had not designated the attorney to accept service (see CPLR 308 [3] ; see generally Broman v. Stern , 172 A.D.2d 475, 476, 567 N.Y.S.2d 829 [2d Dept. 1991] ; Skyline Agency, Inc. v. Coppotelli, Inc. , 117 A.D.2d 135, 148, 502 N.Y.S.2d 479 [2d Dept. 1986] ) and denies that he was personally present at the time of service (see CPLR 308 [1] ; Manocchio v. Narain , 144 A.D.2d 1022, 1022, 534 N.Y.S.2d 297 [4th Dept. 1988] ; see generally Espy v. Giorlando , 85 A.D.2d 652, 652-653, 445 N.Y.S.2d 230 [2d Dept. 1981], affd 56 N.Y.2d 640, 450 N.Y.S.2d 786, 436 N.E.2d 193 [1982] ). In addition, there is an issue of fact whether defendant's attorney reached an agreement with plaintiff's attorney pursuant to which he would not raise any challenges to service of the complaint.
We conclude that "defendant's submissions raised a genuine question on the issue whether service was properly effected" ( Garvey v. Global Asset Mgt. Solutions, Inc. , 192 A.D.3d 1597, 1598, 140 N.Y.S.3d 855 [4th Dept. 2021] [internal quotation marks omitted]; see generally Cach, LLC v. Ryan , 158 A.D.3d 1193, 1194-1195, 71 N.Y.S.3d 237 [4th Dept. 2018] ) and the issue whether defendant waived his challenge to a defect in service (see Midamerica Fed. Sav. Bank v. Gaon , 242 A.D.2d 610, 611, 662 N.Y.S.2d 562 [2d Dept. 1997] ; see generally Matter of Fry v. Village of Tarrytown , 89 N.Y.2d 714, 718-721, 658 N.Y.S.2d 205, 680 N.E.2d 578 [1997] ). We further conclude that, because resolution of those issues "turns upon a question of credibility, a hearing should be held" ( Rosemark Contrs., Inc. v. Ness , 149 A.D.3d 1115, 1116, 53 N.Y.S.3d 188 [2d Dept. 2017] ; see generally Hallston Manor Farm, LLC v. Andrew , 60 A.D.3d 1330, 1331, 875 N.Y.S.2d 379 [4th Dept. 2009] ). We therefore modify the order accordingly, and we remit the matter to Supreme Court for a hearing on the issue of service, a new determination of defendant's motion to dismiss under CPLR 306-b, and, if necessary, a determination on plaintiff's cross motion seeking an extension of time for service.