Ayora v. Young
| Decision Date | 30 July 2010 |
| Citation | 29 Misc.3d 354,906 N.Y.S.2d 719 |
| Parties | Cesar AYORA, Plaintiff, v. Ashley YOUNG, et al., Defendants. |
| Court | New York Supreme Court |
Law Offices of Michael A. Cervini, by Michael A. Cervini, Esq., [no opposition tothe motion], Jackson Heights, for the Plaintiff.
Ahmuty, Demers & McManus, [no opposition to the motion], Albertson, for Defendant Ashley Young, LLC.
Cascone & Kluepfel, LLP, by Gary Austin Manso, Esq., Garden City, for the Third-Party Plaintiff Class One Construction Ltd., Corp.
No appearance for C.F. Arquiglass Corp.
The motion for a default judgment by defendant/third-party plaintiff Class One ("Class One") Construction Ltd. Corp. against third-party defendant C.F. Arquiglass Corp. ("C.F. Arquiglass"), dated February 19, 2010, although unopposed, raises an interesting issue on the proper procedure in pursuing a default judgment when the service of the third-party complaint was made upon the Secretary of State of New York pursuant to the provisions of Business Corporation Law section 306.
The action by the plaintiff was for personal injuries sustained during a construction site mishap. Plaintiff brings this action pursuant to Labor Law sections 240 and 241.
Service of the third-party complaint was made by the plaintiff on November 18, 2009, upon an authorized agent in the Office of the Secretary of State.
On the initial return date of the motion for a default judgment against C.F. Arquiglass, the undersigned's Principal Law Clerk, Howard L. Wieder, Esq., noticed that the motion, while served on all parties, was not served upon the target of the motion, the defaulting third-party defendant C.F. Arquiglass. Mr. Wieder invited moving counsel to brief the issue as to whether the motion, as a matter of procedural correctness and fundamental fairness also had to be served upon C.F. Arquiglass.
Reacting to Mr. Wieder's invitation made at the motion calendar of March 25, by letter dated April 7, 2010, Gary Austin Manso, Esq., of Cascone & Kluepfel, LLP, attorneys for the moving third-party plaintiff, wrote and sent a letter to C.F. Arquiglass, sent to two of its offices in Queens County, New York. The letter advised C.F. Arquiglass of the pendency of the motions and enclosed copies, with each of the two letters, of the motion for a default judgment.
Mr. Manso, on the subsequent return date of June 10, 2010, handed to Mr. Wieder a copy of his April 7 letter, made part of this record.
On or about June 21, 2010, after the motion had been marked "Fully Submitted, No Opposition," Mr. Wieder called Mr. Manso to inquire whether Mr. Manso had received any response to his letter of April 7. Mr. Manso responded no, and Mr. Wieder asked him for a letter submission to document his assertion. By letter dated June 23, 2010, Mr. Manso, affirming under the penalty of perjury, stated that he received no response from C.F. Arquiglass and expressed his willingness to vacate the default if the third-party defendant would serve and file an answer. Mr. Manso served all parties with a copy of his June 23 letter and mailed it also to C.F. Arquiglass at both of its offices or locations. His letter of June 23 has also been marked as part of the record on this motion.
Professor David D. Siegel, in New York Practice [4th ed.2005], states:
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