Ballard v. Billings & Spencer Co.
| Decision Date | 18 February 1971 |
| Citation | 319 N.Y.S.2d 191,36 A.D.2d 71 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Linzie BALLARD, Respondent, v. BILLINGS & SPENCER CO., Respondent, United Greenfield Corporation, and Houdaille Industries, Inc., Appellants. Linzie BALLARD, Appellant-Respondent, v. BILLINGS & SPENCER CO., Respondent, United Greenfield Corporation, and Houdaille Industries, Inc., Appellants. |
Garvey, Magner & Sullivan, Buffalo, for Linzie Ballard (James A. Garvey, Buffalo, of counsel).
Adams, Brown, Starrett & Maloney, Buffalo, for Billings & Spencer Co. (Robert J. Connelly, Buffalo, of counsel).
Before GOLDMAN, P.J., and MARSH, WITMER, GABRIELLI and MOULE, JJ.
This appeal involves a practice question and a determination of the applicability herein of the Civil Practice Law and Rules. The action arises out of an eye injury suffered by plaintiff when a two pound metal ballpeen hammer he was using splintered. Plaintiff alleges that defendant, United Greenfield Corporation (United), or its subsidiary, sold the hammer to his employer, and that the defendant, Billings & Spencer Co. (Billings) or Houdaille Industries, Inc. (Houdaille), or one of their respective subsidiaries, manufactured the hammer in a negligent manner.
The accident happened in November 1961 and not until November 1964 was a summons served to initiate this action. Because of lack of knowledge as to who manufactured the hammer, originally 9 companies were made defendants. Defendants United and Houdaille promptly filed notices of appearances through an attorney (Schnorr) and demanded service of summons and complaint; and defendant Billings did likewise through its attorneys. After an examination before trial the complaint was served in September 1965, at which time the action was discontinued against defendants other than those above mentioned and some subsidiaries. Billings promptly served its answer, but United and Houdaille did not answer. Within a month of receiving Billings' answer plaintiff's attorney wrote to attorney Schnorr twice, reminding him to answer. In November 1965, however, plaintiff served a note of issue stating that issue was joined, and in April 1966 he filed a further notice of issue with certificate of readiness, stating that all pleadings had been served.
Billings' answer contained a defense that the court lacked jurisdiction, and plaintiff's attorney sought the aid of Mr. Schnorr, attorney for United and Houdaille, to establish jurisdiction over Billings. Schnorr provided the necessary information about Billings to the plaintiff, so that Billings in the summer of 1967 withdrew its defense of lack of jurisdiction. In November 1967 plaintiff again wrote to Mr. Schnorr requesting that he serve answers for United and Houdaille, but still none was served. During this period the case had been placed on the general docket. In March 1968 plaintiff served a new note of issue and certificate of readiness, stating that all pleadings had been served, and he successfully moved to restore the case to the calendar. In September 1968 the case reached the day calendar. At a pre-trial conference in December 1968 plaintiff informed attorney Barrett, trial counsel for United and Houdaille, that his clients had not answered; but Barrett did nothing about it. It is noteworthy that at this time plaintiff was expecting United and Houdaille to serve their answers, and he did not suggest that he considered them to be in default. It is clear that he knew Houdaille's position to be that it did not manufacture the hammer but that Billings had manufactured it.
In January 1969 the case was reached for trial, and as the selection of the jury began Mr. Barrett, the trial attorney for United and Houdaille, learned that plaintiff intended to treat the failure of United and Houdaille to answer as an admission of all allegations of the complaint. When plaintiff would not accept the proposed answer of United and Houdaille at this time, Barrett moved for a mistrial, which was denied. The court also denied Barrett's motion to open the default of United and Houdaille and serve their answers during the selection of the jury; and the court directed that the plaintiff proceed to try the issue of damages only. Billings then moved for nonsuit and dismissal of the complaint as against it on the ground that in the state of the record, Houdaille admitted manufacturing the hammer and so Billings could not be the manufacturer thereof; and this motion was granted.
The jury returned a verdict in the sum of $35,000 in favor of plaintiff against United and Houdaille. From the judgment entered upon that verdict plaintiff appeals insofar as the court granted a nonsuit in favor of Billings, and defendants United and Houdaille appeal because of the denial of their motion to serve their answers and appeal from the nonsuit in favor of Billings.
After entry of the judgment defendants United and Houdaille moved for reargument of the previous motions made at the trial, and they moved for an order (1) vacating the judgment against them, including the dismissal of the complaint as against Billings, (2) permitting them to answer, and (3) granting a new trial of all issues in the action by plaintiff against the three defendants. The court granted the motion for reargument of the previous motions. but adhered to its prior rulings and denied all other aspects of the motion. Defendants United and Houdaille appeal from the order entered thereon insofar as it denies such motion.
Upon the jury selection the court treated the motion by defendants United and Houdaille for leave to interpose their long overdue answers as simply a matter of dilatory calendar practice on defendants' part, which it found to be inexcusable in view of defendants' failure to move to vacate the several notes of issue containing certificates of readiness stating that all pleadings had been served. Therefore, the court applied CPLR 3018, declared that defendants' failure to plead constituted an admission of the allegations of the complaint, and directed judgment for plaintiff with respect to liability and ordered assessment of damages only.
The court's exasperation at defendants' dilatory actions is readily understood, and in a different context its action would have been justifiable. We believe, however, that CPLR 3018 cannot be used to support a holding that a default in answering is the equivalent of an interposed answer which fails to deny the substantive allegations of the complaint. This is contrary to the statutory scheme established for the disposition of default cases (see 3 Weinstein-Korn-Miller, New York Civil Practice, 3012.09 and vol. 4, 3015.13).
Article 30 of the CPLR establishes the rules of pleadings, and section 3018 thereof provides for responsive pleadings, specifying their content and effect. It does not deal with the subject of complete failure to serve a responsive pleading. Article 32 of the CPLR provides for accelerated judgments, and section 3215 thereof deals with the effect of a defendant's default. The Legislature did not intend to declare complete 'open season' against defaulting defendants, and it made express limiting provisions upon ...
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