Cole-Hatchard v. Eggers

• Decision Date: 14 October 2015
• Docket Number: 2013-10012, Index Nos. 4368/11, 32554/12.
• Citation: 2015 N.Y. Slip Op. 07466,132 A.D.3d 718,18 N.Y.S.3d 100
• Parties: Stephen J. COLE–HATCHARD, appellant, v. Dick EGGERS, respondent, et al., defendants. (Action No. 1) Stephen J. Cole–Hatchard, appellant, v. William Sherwood, et al., respondents. (Action No. 2).
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 718

18 N.Y.S.3d 100

2015 N.Y. Slip Op. 07466

Stephen J. COLE–HATCHARD, appellant

v.Dick EGGERS, respondent, et al., defendants. (Action No. 1)

Stephen J. Cole–Hatchard, appellant

v.William Sherwood, et al., respondents. (Action No. 2).

2013-10012, Index Nos. 4368/11, 32554/12.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 14, 2015.

Blank Rome LLP, New York, N.Y. (Michelle Gitlitz Courtney and Rither Alabre of counsel), for appellant.

Boeggeman, George & Corde, P.C., White Plains, N.Y. (Daniel E. O'Neill of counsel), for respondent William Sherwood in Action No. 2.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In two related actions to recover damages for defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated August 14, 2013, as granted those branches of the motion of William Sherwood, a defendant in Action No. 2, which were to consolidate the actions, in effect, to vacate an order dated August 3, 2011, granting the plaintiff's motion for leave to enter a default judgment against the defendant Dick Eggers in Action No. 1, and to dismiss the complaint in Action No. 1, and denied his motion to reschedule, as soon as practicable, an inquest on damages in Action No. 1, and for leave to proffer evidence of punitive damages at the inquest.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting those branches of the motion of William Sherwood which were, in effect, to vacate the order dated August 3, 2011, granting the plaintiff's motion for leave to enter a default judgment against the defendant Dick Eggers in Action No. 1, and to dismiss the complaint in Action No. 1, and substituting therefor a provision denying those branches of the motion, (2) by deleting the provision thereof granting that branch of the motion of William Sherwood which was to consolidate the actions, and substituting therefor a provision denying that branch of the motion as academic, and (3) by deleting the provision thereof denying that branch of the plaintiff's motion which was to reschedule the inquest on damages in Action No. 1 as soon as practicable, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, the order dated August 3, 2011, in Action No. 1 is reinstated, and Action No. 1 is remitted to the Supreme Court, Rockland County, for an inquest on the issue of damages.

During the plaintiff's campaign for election to a seat on the Stony Point Town Council, Dick Eggers wrote a letter to residents of the Town of Stony Point opposing the plaintiff's candidacy and making certain statements regarding the plaintiff. On or about May 20, 2011, the plaintiff commenced Action No. 1 against Eggers and “John Does 1–5,” alleging defamation. Eggers failed to answer the complaint or otherwise appear, and the plaintiff moved for leave to enter a default judgment. Eggers appeared and opposed the motion, and cross-moved for leave to serve a late answer. In an order dated August 3, 2011 (hereinafter the default order), the Supreme Court (Kelly, J.) granted the plaintiff's motion for leave to enter a default judgment, denied Eggers' cross motion, and scheduled an inquest on damages.

In May 2012, the plaintiff commenced Action No. 2 against William Sherwood and others, alleging that the defendants acted in concert with Eggers in distributing the subject letter, and seeking to recover damages for defamation. After both cases were conferenced with a newly assigned justice, the plaintiff moved in Action No. 1 to reschedule, as soon as practicable, the inquest on damages, at which he would be permitted to proffer evidence of punitive damages. Sherwood moved in Action No. 2 to consolidate the actions, in effect, to vacate the default order entered against Dick Eggers in Action No. 1, and to dismiss the complaints in both actions. In the order appealed from, the Supreme Court granted Sherwood's motion, consolidated the actions, vacated the default order, and directed the dismissal of both complaints. The court also denied the plaintiff's motion. The plaintiff appeals.

Although CPLR 5511 prohibits an appeal from an order entered upon default, that provision does not apply where, as here, a party appears and contests a motion for leave to enter a default judgment (see Spano v. Kline, 50 A.D.3d 1499, 857 N.Y.S.2d 382 ; Spatz v. Bajramoski, 214 A.D.2d 436, 624 N.Y.S.2d 606 ; Spoor–Lasher Co. v. J.E.H. Dev. Co., 58 A.D.2d 646, 396 N.Y.S.2d 59 ). Under the circumstances, the proper remedies were either an appeal from the default order, a timely motion for reargument or renewal, or an appeal from a judgment entered after the inquest on damages, which would bring up for review the default order (see Clarke v. United Parcel Serv., 300 A.D.2d 614, 615, 752 N.Y.S.2d 395 ; see also CPLR 5501[a] [1] ; Alam v. Alam, 123 A.D.3d 1066, 1067, 1 N.Y.S.3d 227 ; Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 896 N.Y.S.2d 315 ; Spano v. Kline,...