Forstman v. Arluck

• Decision Date: 06 August 1979
• Citation: 71 A.D.2d 847,419 N.Y.S.2d 169
• Parties: Gloria FORSTMAN, Appellant, v. Stephen B. ARLUCK, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 169

419 N.Y.S.2d 169

71 A.D.2d 847

Gloria FORSTMAN, Appellant, v. Stephen B. ARLUCK, Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Fuchsberg & Fuchsberg, New York City (Norman E. Frowley, New York City, of counsel), for appellant.

Mirabel, Wortman & Freidel, Huntington (Michael K. Kelly, Huntington, of counsel), for respondent.

Before O'CONNOR, J. P., and RABIN, SHAPIRO and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, plaintiff appeals from (1) an order of the Supreme Court, Suffolk County, dated October 27, 1978, which denied his motion to proceed to inquest for an assessment of damages and granted defendant Arluck's cross motion to open his default and to compel plaintiff to accept service of Arluck's answer; and (2) so much of a further order of the same court, dated December 19, 1978, as, upon reargument, adhered to its original determination.

Appeal from order dated October 27, 1978 dismissed as academic, without costs or disbursements. That order was superseded by the order dated December 19, 1978.

Order dated December 19, 1978 affirmed, without costs or disbursements, on condition that within 20 days after service upon defendant Arluck of a copy of the order to be made hereon together with notice of entry thereof, said defendant serve and file with the trial court a stipulation waiving his first affirmative defense that the court "does not have jurisdiction of the defendant, Arluck, by reason of the improper service". In the event that said defendant fails to comply with the aforesaid condition, then the order is reversed, on the law, with $50 costs and disbursements, the plaintiff's motion for an inquest is granted and defendant's cross motion to vacate his default is denied.

In late August, 1978 the plaintiff commenced the instant medical malpractice action by service of a summons and complaint. After having been refused a stipulation extending the time to answer, defendant Arluck sought to serve an answer on September 14, 1978. Plaintiff rejected the answer and brought a motion, returnable on October 9, 1978, for an inquest to assess damages upon Arluck's default. Plaintiff consented to Arluck's request to adjourn this motion until October 23, 1978, thereby allowing Arluck the opportunity to cross move to vacate the default and compel acceptance of the answer. The Statute of Limitations expired on October 9, 1978.

Special Term vacated the default and directed the plaintiff to accept service of the answer. Included in the answer is the affirmative defense of lack of personal jurisdiction. In support of Arluck's cross motion is Arluck's averment that rather than being personally served, process was discovered by his wife under the door of the marital residence. There is no denial that Arluck actually received the summons and complaint. Nor is it claimed that the alleged impropriety of service caused Arluck's default. Rather, the only excuse offered for the failure to timely answer was the claim of "necessary bureaucratical action".

Arluck has conceded that "the answer was procedurally untimely". Necessarily, the plaintiff was technically entitled to a default judgment (CPLR 3215). Normally, in the circumstances of this case (i. e., a delay of only several days and an adequate, albeit a non-compelling excuse), there is no question that the default would be vacated and that the plaintiff would be required to accept service of the answer. However, in view of the sequence of events, the inclusion in the answer of the affirmative defense of lack of personal jurisdiction severely prejudices the plaintiff because, in the event that the affirmative defense is sustained, the plaintiff would be barred from commencing a new action. This court has...