Green v. Brunetti

• Decision Date: 08 November 1961
• Citation: 220 N.Y.S.2d 981,31 Misc.2d 477
• Parties: Edward GREEN, Plaintiff, v. Sittiner BRUNETTI and Messing Bakeries, Inc., Defendants.
• Court: New York City Municipal Court

Page 981

220 N.Y.S.2d 981

31 Misc.2d 477

Edward GREEN, Plaintiff, v. Sittiner BRUNETTI and Messing Bakeries, Inc., Defendants.

Municipal Court of City of New York, Borough of Queens Fifth District.

Nov. 8, 1961.

Jack Nadel, Brooklyn, for plaintiff.

Thomas F. Keane, Brooklyn, for defendant Brunetti.

ABRAHAM R. MARGULIES, Justice.

The defendant, Brunetti, by order to show cause is seeking to be relieved from an order of this court and given an opportunity to contest the validity of service of a summons.

If the granting of the application depended in any way upon the moving papers it would be denied. It appears that little interest or concern was evinced by the defendant in the Civil Practice Act or the Municipal Court Code. The appropriate sections were disregarded as if they never existed. Not only did the defendant fail to follow the procedure as outlined by Municipal Court Code, § 88 but when he was in default failed to set forth in the moving papers what had transpired and attach copy of pleadings and order of this court.

Courts are vested both by statute (Sec. 108, Civil Practice Act) and by inherent power with discretion to open defaults at any stage and in all character of actions in order to further justice. [Vanderbilt v. Schreyer, 81 N.Y. 646.]

It is only where the default has been intentional, wilful, or where defendant had something wrong or acted in bad faith that relief would be denied. [Baldwin v. Yellow Taxi Corp., 221 App.Div. 717, 225 N.Y.S. 423.]

In order to answer the question as to whether defendant is entitled to relief requested, an examination of the alleged facts is in order.

The plaintiff sustained property damages as a result of an automobile accident which took place on 8/20/58 and seeks to recover $850 from the defendant. Plaintiff claims that a summons was personally served on the defendant on 8/10/61, ten days before the statute of limitations would have tolled. The defendant contended that he was not served personally but found the summons under his door. Attorney for defendant prepared on 8/16/61 a notice of motion returnable 9/6/61 to set aside the service. The said notice of motion was served on attorney for plaintiff on 8/23/61 but did not file original thereof with the court until 9/7/61.

On 9/6/61 the plaintiff and his witnesses appeared, but neither defendant nor his papers were before the court. At request of plaintiff the matter was adjourned to 9/13/61. However, without bothering to determine what had happened with motion returnable 9/6/61 the defendant on 9/8/61 prepared a new notice, served the plaintiff on 9/13/61 and made same returnable on 9/27/61. The moving papers were filed with the clerk on 9/14 and put on the calendar of 9/27.

On 9/27 the plaintiff and his witnesses were in court once again to prove the service, but the only one who appeared for defendant was a representative of American Clerical Service, Inc., who said 'submit'. Whereupon this court entered the following order: 'Upon the foregoing papers this motion is denied. Plaintiff and his witnesses were in court. Defendant failed to appear. Service answered 'submit'. This matter came before the court by reason of paper filed September 14, 1961. Application made by defendant is improper in that it fails to comply with M.C.C. § 88. Since defendant has failed to establish basis for special appearance court must overrule objection based upon alleged defective service. Defendant may upon payment of $15 costs interpose an answer within seven (7) days after service of copy of this order.'

Obviously counsel for defendant is not familiar with the practice in the Municipal Court where an objection is taken to the jurisdiction of the court. The pertinent portion of Sec. 88, M.C.C. is as follows:

'An objection that the court has no jurisdiction of the person of the defendant * * * may be taken by filing a notice of special appearance with the clerk, on or before the last day for answering. * * * Upon filing of such notice of appearance * * * the matter shall be set down for hearing * * * by the attorney for either party.'

All of this the defendant did but apparently didn't know it for now he says he expected 'someone' to let him know if his appearance was necessary.

Apparently the defendant is confused with the practice in the Supreme Court (Sec. 237-a, C.P.A.) where the question of service is brought on by motion, and if on the hearing of the motion there appears to be a question of fact, it is set down for hea...