Keith v. New York State Teachers' Retirement System

• Decision Date: 10 February 1977
• Citation: 56 A.D.2d 671,391 N.Y.S.2d 479
• Parties: Floyd B. KEITH, Jr., Individually and as Administrator of the Estate of F. Elizabeth Keith, Deceased, Respondent, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 479

391 N.Y.S.2d 479

56 A.D.2d 671

Floyd B. KEITH, Jr., Individually and as Administrator of the Estate of F. Elizabeth Keith, Deceased, Respondent, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 10, 1977.

Louis J. Lefkowitz, Atty. Gen. (Lawrence L. Doolittle, Albany, of counsel), for appellant.

Robert J. McKeegan, Delhi, for respondent.

Before KOREMAN, P.J., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered December 31, 1975 in Delaware County, which granted a motion by the plaintiff for default judgment, denied defendant's motion for an extension of time within which to serve an answer and directed an inquest.

In the underlying action, plaintiff sued to obtain certain retirement benefits which would have been payable if the plaintiff's decedent (his wife) had selected one of the optional requirement allowances rather than the no option provision in her retirement application. The original complaint, in three causes of action, sought (1) recision of the contract, (2) reformation of the contract and (3) revocation of the contract because of her mental incapacity and incompetency at the time the initial option was selected.

Defendant attacked the complaint and in this court the first and second causes of action were dismissed, but the third cause of action in regard to revocation because of incapacity and incompetency was sustained (Keith v. New York State Teachers' Retirement System, 46 A.D.2d 938, 362 N.Y.S.2d 231, mot. for lv. to app. den. 36 N.Y.2d 731, 368 N.Y.S.2d 160, 328 N.E.2d 789). After leave to appeal to the Court of Appeals was denied, the order of the Court of Appeals with notice of entry was served on the defendant on April 9, 1975.

On September 19, 1975, the defendant attempted to serve an answer which was rejected. Plaintiff moved for default judgment on October 14, 1975 and the defendant cross-moved for an order granting an extension of time within which to serve an answer under CPLR 2004. The trial court granted the motion for a default judgment (CPLR 3215) and, in considering the defendant's cross-motion, stated 'this Court is of the opinion that regardless of whether this is treated as a motion to extend the time to answer or whether it is treated as a motion to excuse a default, the defendant must show a valid excuse for the default'. Special Term found that the excuse offered came within the purview of cases which can be classified as 'law office failure'. The cross-motion of the defendant to extend its time to answer was denied and the case was scheduled for inquest. At the inquest the defendant was allowed to participate to the extent of cross examining the plaintiff's doctor in regard to the competency and mental state of the plaintiff's intestate at the time in question.

Although the defendant couches its motion as one to extend its time to answer (CPLR 2004), such an application must be...