Antonucci v. Bell

Citation2022 NY Slip Op 50479 (U)
Decision Date10 June 2022
Docket NumberIndex No. 150003/2022
PartiesAntoinette Antonucci, Plaintiff, v. Reginald Bell, Defendant.
CourtUnited States State Supreme Court (New York)

Unpublished Opinion

MOTION DECISION

Counsel for the Plaintiff

Pro Se - Redacted for Privacy

Counsel for Defendant

Pro Se - Redacted for Privacy

Ronald Caastorina Jr., J.

The following e-filed documents listed on NYSCEF numbered 1-24 were read on this motion (Motion Sequence No.001).

Upon the foregoing, Motion Sequence #001 is resolved as follows:

ORDERED that Plaintiff's motion (Motion Sequence # 001) for default judgment against defendant REGINALD BELL is hereby GRANTED, and it is further, ORDERED, that Judgment, on default, in the sum of $11, 858.53 (Eleven Thousand Eight Hundred Fifty-Eight Dollars and Fifty-Three Cents) is entered against Defendant REGINALD BELL, with interest, from June 21 2012.

ORDERED that the Clerk of the Court shall enter judgment accordingly and it is further, ORDERED, that Plaintiff shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon Defendant.

Relevant Facts

A Richmond County jury convicted the Defendant of 1st Degree Manslaughter of Plaintiff's 20-year-old son on December 9, 2011. Defendant was sentenced to a determinate term of 20 years in prison and is currently incarcerated at the Fishkill Correctional Facility located in Beacon, New York. Plaintiff, pro se, a crime victim, pursuant to NY Executive Law §632 [a], commenced the within action by Summons with Notice on January 3, 2022. Plaintiff seeks compensation for claims made under the New York State "Son of Sam" laws (NY Executive Law §632 [a]) out of monies belonging to the defendant, obtained through settlement of a certain personal injury action. Said personal injury action was settled in the sum of $20, 000.00 (Twenty Thousand Dollars and No Cents), while the Defendant was incarcerated at the Fishkill Correctional Facility. A portion of the funds are presently restrained pursuant to NY Executive Law § 632- [a], by injunction Ordered by Hon. Eugene P. DeVine, Justice of the Supreme Court, Albany County, on June 21, 2012 (See, NYS OVS v Reginald Bell, Index No. 958-12 [Albany Co.]).

Defendant, pro se, was personally served with the Summons with Notice on January 26, 2022. He served a Demand for Complaint through NYSCEF (dated January 17, 2022, Document No. 4) on January 31, 2022. However, Plaintiff had already filed a Complaint on January 28, 2022, via NYSCEF (Document No. 3). Subsequently, the Defendant filed an unorthodox document entitled "RESPONSE IN OPPOSITION TO COMPLAINT" on February 17, 2022, failing to address any of the individually stated allegations within Plaintiff's Complaint. Instead, the document, which is not sworn to under the penalty of perjury, gives the Defendant's account of the prior proceedings in Albany County, his understanding of his legal position, a request for dismissal of the Plaintiff's Complaint, and a request for the court to excuse any errors.

This matter was scheduled for a Preliminary Conference in IAS Part 7 on April 26, 2022. The Plaintiff appeared in court and the Defendant did not. The Defendant never communicated with the court via NYSCEF or any other means, to discuss the prospect of a virtual appearance, nor did he call to discuss the scheduled Preliminary Conference. The court granted the Defendant the courtesy of waiving his appearance and adjourned the matter for another date for Preliminary Conference, which coincided with the return date of Plaintiff's instant motion.

On April 28, 2022, Plaintiff, filed (via NYSCEF Document No. 15) a Notice of Motion for Default Judgment and Affirmation [ sic ] in Support. On May 17, 2022, Defendant filed (via NYSCEF Document No. 22) a document entitled "AFFIDAVIT IN OPPOSITION TO DEFAULT JUDGMENT." Defendant's document is almost identical to the document he previously filed, entitled "RESPONSE IN OPPOSITION TO COMPLAINT." To date, the Defendant has not filed a document entitled "Answer," nor has he directly answered any of the allegations in the Complaint.

Discussion

Defendant's failure to file an Answer, and failure to cure after motion

An Answer is a Defendant's pleading. It has several chores to perform. The first is found in CPLR § 3018 [a], which requires the Defendant to respond to the Complaint with denials or admissions (New York Practice, 6th Ed., Siegel, David and Connors, Patrick, §221, p.415 [2018]). Defendant herein has failed to deny or admit any of the allegations found within the Complaint, and has not attempted to cure the defect, after Plaintiff filed a motion for default judgment. Whether to extend time to answer a complaint and compel acceptance of a late answer pursuant to CPLR § 3012 (d), or to vacate a default for not filing an answer under CPLR 5015 (a) (1), defendant must provide a reasonable excuse and proof of a meritorious defense (see Maspeth Fed Sav & Loan Assn v McGown, 77 A.D.3d 890 [2d Dept 2010]; Midfirst Bank v. Al-Rahman, 81 A.D.3d 797 [2d Dept. 2011]; Karalis v New Dimensions HR, Inc., 105 A.D.3d 707 [2d Dept. 2013]; TCIF REO GCM, LLC v Walker, 139 A.D.3d 7945 [2d Dept 2016]). This standard governs applications made both prior and subsequent to a formal fixing of a default by the court (see Integon Natl Ins Co v Norterile, 88 A.D.3d 654 [2d Dept 2011]; Bank of New York v. Espejo, 92 A.D.3d 707 [2d Dept 2012]).

The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light, 278 A.D.2d 494 [2d Dept 2000]; Segovia v Delcon Constr Corp, 43 A.D.3d 1143 [2d Dept 2007]). Here, no excuse or rationale has been proffered by Defendant. The court will not sua sponte convert Defendant's "RESPONSE IN OPPOSITION TO COMPLAINT" to an Answer, as it would be impossible to do so. The Court can not determine, based upon the Defendant's filing, whether the Defendant denies, admits, or takes any other posture as to each of the allegations contained within the complaint. The Court can not pick and choose based upon the allegations made in Defendant's papers whether to allow it to constitute an Answer, a Motion, or something else. The Court cannot propagate a litigation strategy for any party, whether they are represented or not.

As Defendant has not established a reasonable excuse for his default, the court need not consider his claim of meritorious defenses contained within his opposition (see HSBC Bank USA v Miller, 121 A.D.3d 1044 [2d Dept 2014]; One W Bank FSB v Valdez, 128 A.D.3d 655 [2d Dept 2015]); Deutsche Bank National Trust Co v. Kuldip, 136 A.D.3d 969 [2d Dept 2016] Bank of NY Mellon v Colucci, supra; US Bank Natl Assn v Barr, supra; Bank of NY v Krausz, 144 A.D.3d 718 [2d Dept 2016]; Wells Fargo Bank v Pelosi; 159 A.D.3d 852 [2d Dept 2018]). Therefore, Plaintiff's motion is GRANTED to the extent of this Memorandum Decision and Order.

B. Pro Se Litigants

It is noteworthy that both Plaintiff and Defendant are pro se litigants in ...

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