Dunn v. Braick, 2004 NY Slip Op 51138(U) (NY 9/14/2004), CA2003-002960.
| Decision Date | 14 September 2004 |
| Docket Number | CA2003-002960. |
| Citation | 2004 NY Slip Op 51138(U) |
| Parties | GAIL T. DUNN and ROBERT L. DUNN Plaintiffs v. SALIM MANSOUR BRAICK, M.D. Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Martin, Ganotis, Brown, Mould & Currie for Defendant.
Plaintiff's counsel had written a letter to Dr. Braick in August of 2003, advising that he was handling a medical malpractice claim on behalf of the Plaintiffs against Dr. Braick, and that he should turn the matter over to his carrier. Mrs. Dunn had previously written Dr. Braick requesting a copy of her records. Dr. Braick forwarded the letter to his carrier and, when the carrier advised him he had no coverage by letter dated August 26, 2003, he consulted Attorney George Mould and requested Attorney Mould to look into the coverage issue for him and, in the absence of coverage, handle the matter privately. Dr. Braick was aware that he had not paid his medical malpractice "tail" premium; he could not have been shocked that the carrier refused to cover him.
This action was commenced by service of a summons and complaint upon "a person of suitable age and discretion" at the actual dwelling place of the Defendant, Dr. Braick, on December 23, 2003. On February 3, 2004, a "Default Judgment" was signed and filed. An inquest was then ordered and was held on March 15, 2004. The Court issued a decision dated March 30, 2004, and a "Default Judgment" was filed on March 31, 2004.
Dr. Braick moves to vacate the Default Judgment(s).
CPLR 5015(a) provides that a party may be relieved from a judgment on the ground of, among others, "excusable default" (CPLR 5015[a][1]). A defendant seeking to vacate a default under this provision must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action (see, e.g., Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270; Blake v. City of New York, 90 A.D.2d 531, 455 N.Y.S.2d 34).
[2] A second provision for obtaining relief from a default judgment is found in CPLR 317. That section states, in part, that "[a] person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318 * * * may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment * * * upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense." As has been emphasized in numerous cases, there is no necessity for a defendant moving pursuant to CPLR 317 to show a "reasonable excuse" for its delay (see, e.g., Simon & Schuster v. Howe Plastics & Chems. Co., 105 A.D.2d 604, 605, 481 N.Y.S.2d 82; Zuppa v. Bison Drywall & Insulation Co., 93 A.D.2d 997, 462 N.Y.S.2d 83).
Dr. Braick was not personally served. He alleges that he did not obtain knowledge of the same in time to defend, and that during this period he was in the United Arab Emirates seeking to resume his medical career. He therefore claims relief pursuant to CPLR §317. He also claims to have a meritorious defense and, in any event, a reasonable excuse for his failure to timely answer. He thus claims entitlement to relief pursuant to CPLR §5015(a) as well. Because we conclude that Dr. Braick did indeed have timely knowledge of the action but chose not to respond he cannot satisfy the statutory requirement of lack of knowledge. And, because he did have actual knowledge of the service, and yet chose to do nothing, he cannot claim a reasonable excuse for the delay.
In the affidavits in support of the motion to vacate the default judgment the person upon whom the summons and complaint were served Lori McSweeney is described as an "unrelated acquaintance" of Dr. Braick. Dr. Braick testified that Lori McSweeney is his "common law wife", that they have lived together for fifteen years, and that they have two children together. Ms. McSweeney is one of the named beneficiaries of the Braick Family Trust, an irrevocable trust into which Dr. Braick's assets had been placed. Her interest and involvement utterly transcend the connotations of the phrase "unrelated acquaintance", and contributes to the finding that the fact of service was conveyed to Dr. Braick.
Ms. McSweeney was served on December 22, 2003 at the residence she shared with Dr. Braick. She called Dr. Braick in the UAE on December 23, 2003 and on other occasions in December of 2003 and January of 2004. Dr. Braick acknowledges that Ms. McSweeney told him about the lawsuit, but does not know when. Ms. McSweeney testified she told him about the lawsuit, but does not know when. He testified that his best recollection is January, 2004. Yet it is not credible that he was not told about it during the call of December 23. The service had occurred the previous day. It was a lawsuit against Dr. Braick. That it would be ignored in conversation the next day, yet recited in conversation a month later, is simply not believable. What would have brought it to Ms. McSweeney's attention as something to discuss in January, yet not on the day after it was served???
Dr. Braick testified that whenever it was Ms. McSweeney told him about the papers that he told her not to worry about it, he had spoken with Mr. Mould about the letter he had received in August from Mr. Keinz.
Dr. Braick does not make a prima facie showing for relief pursuant to CPLR §317. He does not in fact testify to a lack of knowledge of the suit prior to the time an answer was due. Indeed, while the Court concludes that he must have known of the suit in December, even if it was late in January, 2004, he still had time to answer and could have contacted Mr. Mould, whom he had consulted on the very matter and testified he had asked to handle it for him privately if the carrier wouldn't assume the defense. Affirmative proof of non-knowledge within the time to answer is a necessary part of the remedy available under CPLR §317, and Dr. Braick produces no such proof. On the contrary, if his testimony that he learned of it in January is correct, then he had actual knowledge before his time to Answer expired.
Since on his own testimony he cannot succeed under §317, the question turns to whether Dr. Braick has shown a "reasonable excuse" for his default, so as to be entitled to relief under §5015. Dr. Braick's proffer is that he somehow assumed that Mr. Mould or the insurance carrier would take care of the suit without his taking any steps. Dr. Braick testified that two or three lawsuits were pending against him at the time he was served in the Dunn suit, yet professes ignorance of the need to turn served papers over to someone to see to their handling. The records of the Oneida County Clerk show that Dr. Braick was sued five times in this County previous to the Dunn suit1". Dr. Braick testified to having been served on ten to fifteen occasions (p.67). Dr. Braick testified (p. 33):
Q. Well, Doctor, you're not new to being served papers in December of 2003; you had been served a few times before, had you not?
A. It's always the same way. I always, always send them to the to the to the insurance company or to the lawyers who's working.
Yet this time he did not cause them to be forwarded to anyone. He just told Ms. McSweeney not to worry about them. And he testified just a few pages later (p. 35):
Q. Well, was it your understanding when you heard from your common law wife that she had been served with papers in the Dunn case that Mr. Mould was handling the matter for you?
A. This is my honest knowledge that it is. I always
believed that he would be getting the original papers, and I may have received a copy. I didn't think I am the only one who received it or I am going to do anything about it. I mean, I never did anything with any of these cases personally at all.
Q. How do you feel that Mr. Mould was going to get the original papers when the plaintiffs or the plaintiffs'
attorney never knew that George Mould had talked to you about this matter? How did you feel those papers were going to get to him?
A. I believe he would have received them from the
malpractice insurance company because that's where I send the papers. And, usually, he would receive it from them.
Q. Well, did you tell your common law wife Lori to send those papers to your malpractice carrier?
A. No, I didn't.
"A defendant seeking to vacate a judgment entered upon its failure to appear or answer a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense . . . " Mount Sinai Hosp. of Queens v. Hertz Corp. 3 A.D.3d 523, 770 N.Y.S.2d 757, [2 Dept.,2004]. A "reasonable" excuse requires the demonstration of some reason for the inaction that led to default. Yet Dr. Braick demonstrates no reason whatever. Although he had always turned papers over to his carrier, he didn't this time. Mr. Keinz had written him, not his carrier. He had no reason to believe Mr. Keinz or the Plaintiffs knew who his carrier was, or if he had one; indeed, since Mr. Keinz specifically requested in the letter that he turn the letter over to his carrier, it should have been obvious to him that Mr. Keinz did not know who the carrier was. And the carrier had told Dr. Braick on August 26 that he had no coverage and that they wouldn't handle it. What reason does he offer to have believed that the carrier and/or Mr. Mould knew about this lawsuit or had been served the original papers, or that he didn't need to forward these papers although he had always done so in the past? None. Who was supposed to forward the papers to Mr. Mould? Not the carrier, for he had none. Had someone told Mr. Keinz whom to send papers to? There is no suggestion of that. Dr. Braick is...
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