Gray v. Goodluck-Hedge

• Docket Number: 2019–10450,Index No. 708743/17
• Decision Date: 21 September 2022
• Citation: 208 A.D.3d 1221,175 N.Y.S.3d 253
• Parties: Nickeisha GRAY, appellant, v. Tizana GOODLUCK–HEDGE, et al., defendants, Patricia A. Cupid, respondent (and a third-party action).
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1221

175 N.Y.S.3d 253

Nickeisha GRAY, appellant,

v. Tizana GOODLUCK–HEDGE, et al., defendants,Patricia A. Cupid, respondent(and a third-party action).

2019–10450

Index No. 708743/17

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

Argued—March 7, 2022

September 21, 2022

G. Wesley Simpson, P.C., Brooklyn, NY, for appellant.

Gold Benes, LLP, Bellmore, NY (Jeffrey B. Gold and Karen C. Higgins of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered July 31, 2019. The order, insofar as appealed from, granted those branches of the motion of the defendant Patricia A. Cupid which were to vacate an order of the same court dated October 29, 2018, granting the plaintiff's motion for leave to enter a default judgment against her, and to compel the plaintiff to accept her late answer.

ORDERED that the order entered July 31, 2019, is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and those branches of the motion of the defendant Patricia A. Cupid which were to vacate the order dated October 29, 2018, and to compel the plaintiff to accept her late answer are denied.

This action to recover damages for personal injuries allegedly sustained by the plaintiff at a gym located on premises owned by the defendant Patricia A. Cupid was commenced by the filing of the summons and complaint in June 2017. Cupid was served pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of her home on August 7, 2017, at 4:00 p.m., and by mailing the summons and complaint to her home on August 16, 2017.

Cupid did not appear or answer the complaint. On March 28, 2018, the plaintiff's counsel mailed a copy of the summons and complaint to Cupid, together with a letter advising her that if the plaintiff's counsel did not hear from Cupid within 10 days, a motion for leave to enter a default judgment against her would be made.

By notice of motion dated June 8, 2018, the plaintiff moved for leave to enter a default judgment against Cupid. Cupid opposed the motion with an attorney's affirmation that alleged that Cupid first became aware of the action upon the receipt of the motion. Cupid served and filed an answer on or about July 3, 2018, verified by her attorney, and a copy of a written lease with a tenant, indicating that she was an out-of-possession landlord with respect to the area where the accident occurred.

In an order dated October 29, 2018, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment against Cupid. In granting the motion, the court noted that Cupid did not move for leave to vacate her default in appearing, and that no affidavit of merit was provided.

On December 24, 2018, Cupid moved, inter alia, to vacate the order dated October 29, 2018, and to compel the plaintiff to accept her late answer. Cupid submitted her personal affidavit stating that she was on vacation in Canada at the time the summons and complaint were purportedly annexed to her door on August 7, 2017, and upon her return from vacation on August 8, 2017, the summons and complaint were not at her door. She further averred that she did not receive a copy of the summons and complaint by mail until she received the plaintiff's motion for leave to enter a default judgment. Cupid alleged that she did not submit a personal affidavit in response to the plaintiff's motion for leave to enter a default judgment because her counsel "was unable to coordinate the drafting and execution of said Affidavit in time to respond to the Motion for Default Judgment with its looming return date of July 9, 2018."

In an order entered July 31, 2019, the Supreme Court granted those branches of Cupid's motion which were to vacate the order dated October 29, 2018, and to compel the plaintiff to accept her late answer. The plaintiff appeals.

Cupid does not challenge the propriety of service of process against her. Rather, she claims she did not have notice of the action until the plaintiff moved for leave to enter a default judgment against her. Cupid sought to vacate her default pursuant to CPLR 5015(a)(1), alleging, as a reasonable excuse for her delay in appearing and answering, that she did not have notice of the action until the plaintiff moved for leave to enter a default judgment. She further relied on CPLR 317, which provides that a defaulting defendant who was served by a method other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see Dunn v. Law Offs. of Evans & Al–Shabazz, LLP, 189 A.D.3d 776, 779, 137 N.Y.S.3d 476 ). A "conclusory and unsubstantiated denial of receipt of the summons and complaint" is insufficient to establish lack of notice ( id. at 779, 137 N.Y.S.3d 476 ).

Here, Cupid claimed that her denial of receipt was not bare and conclusory, based upon evidence that she was away on vacation when the summons and complaint were left at her door pursuant to CPLR 308(4). However, even assuming that explanation was sufficient for her alleged failure to receive the summons and complaint left at her door, Cupid did not explain why she did not receive notice by mail—which was effected twice. The bare conclusory denial of receipt was insufficient to establish a reasonable excuse for the default, or lack of notice of the action (see Stevens v. Charles, 102 A.D.3d 763, 958 N.Y.S.2d 443 ). In light of that determination, it is not necessary to determine whether Cupid demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 5015(a)(1) or 317 (see Goldfarb v. Zhukov, 145 A.D.3d 757, 759, 43 N.Y.S.3d 135 ).

The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.

ROMAN, J., CHRISTOPHER and FORD, JJ., concur.

BRATHWAITE NELSON, J.P., dissents, and votes to affirm the order insofar as appealed from, with the following memorandum:

The plaintiff allegedly was injured on June 21, 2016, while attending an exercise class in Brooklyn at the defendant Tizana's Body Renewal, also known as Tizana's Body Renewal Gym (hereinafter the gym). The plaintiff commenced this action against the gym, the gym's owner Tizana Goodluck–Hedge, and the owner of the premises, Patricia A. Cupid, alleging that the exercise equipment was defective and that the plaintiff received improper instruction and care. According to the affidavit of service, the plaintiff served Cupid with the summons and complaint pursuant to CPLR 308(4) by affixing a copy to the door of Cupid's home on August 7, 2017, and thereafter mailing a copy by first-class mail to the home. The affidavit of service indicated only that it was mailed to Cupid's home, but it failed to indicate that it was addressed to Cupid.

By notice of motion dated June 8, 2018, the plaintiff moved for leave to enter a default judgment against Cupid. Cupid opposed the motion with an attorney's affirmation dated July 3, 2018, which asserted that Cupid first become aware of the action when she received notice of the default motion. In the affirmation, the attorney asserted that she had left several voice messages with the plaintiff's counsel seeking to discuss withdrawal of the motion upon receipt of Cupid's answer, but the plaintiff's counsel did not return her several calls. In opposition to the motion, Cupid's attorney argued that the plaintiff had failed to provide proof of the facts constituting the claim as required by CPLR 3215(f) and that the complaint was legally and factually deficient insofar as asserted against Cupid, as Cupid was merely the owner of the premises and had no control over the exercise equipment and/or classes. The attorney, however, failed to include any evidentiary submissions with the affirmation in opposition.

Cupid served and filed an answer on or about July 3, 2018, which admitted that she owned the premises, denied the allegations of negligence, asserted several affirmative defenses, and asserted cross claims for contribution and indemnification against the other defendants. Cupid also served discovery demands on the plaintiff on August 3, 2018. On August 23, 2018, the parties attended a compliance conference, resulting in a compliance conference order (Joseph J. Espositio, J.) in which the parties agreed to conduct certain discovery by certain dates. Discovery was thereafter exchanged. Cupid commenced a third-party action for contribution and indemnification against Earl Jones, alleging that he had leased the subject premises from her and subleased them to the gym and Goodluck–Hedge, in violation of the terms of the lease.

As discovery proceeded with Cupid's full participation, the plaintiff's motion for leave to enter a default judgment against her remained pending. In an order dated October 29, 2018, the Supreme Court (Carmen R. Velasquez, J.) granted the plaintiff's motion for leave to enter a default judgment against Cupid. The court found, inter alia, that Cupid had failed to provide any basis to deny the motion, noting that she had not moved to vacate her default in appearing, and that she had not provided a meritorious defense, as she did not submit an affidavit of merit with her opposition papers.

Cupid then moved, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the order dated October 29, 2018, or, in the alternative, for leave to renew her opposition to the plaintiff's motion for leave to enter a default judgment against her, and thereupon, to vacate her default and to compel the acceptance of her answer previously served and filed. In support of the motion, Cupid submitted, among other things, an affidavit in which s...