Lancaster v. Kindor

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SANDLER; PER CURIAM
• Citation: Lancaster v. Kindor, 471 N.Y.S.2d 573, 98 A.D.2d 300 (N.Y. App. Div. 1984)
• Decision Date: 10 January 1984
• Parties: Mia LANCASTER, Plaintiff-Respondent, v. Tyrone KINDOR, Defendant-Appellant.

Page 573

471 N.Y.S.2d 573

98 A.D.2d 300

Mia LANCASTER, Plaintiff-Respondent, v. Tyrone KINDOR, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 10, 1984.

Martin S. Rothman, New York City, of counsel (Matthew A. Tedone and Alyne Diamond, Albertson, with him on brief, Tedone & Tedone, Albertson, attorneys) for defendant-appellant.

Maria Lancaster a/k/a Mia Lancaster, plaintiff-respondent, pro se.

Before SANDLER, J.P., and ROSS, FEIN, LYNCH and KASSAL, JJ.

PER CURIAM.

Defendant appeals from a judgment after jury trial awarding plaintiff $1,053,422.50 in damages and interest. The complaint spells out causes of action for breach of contract, conversion and malicious prosecution. Defendant also appeals from interim orders permitting service by publication, permitting foreign service by mail, granting dismissal only conditionally, granting poor person relief while denying reargument and renewal of the prior motion to the extent that it had granted defendant relief only conditionally, granting plaintiff a special trial preference, denying dismissal of the complaint, denying a motion to set aside the jury verdict, and denying still another motion to dismiss or set aside the verdict and grant a new trial on the ground of newly discovered evidence.

Plaintiff, who was represented by three different attorneys at various stages of this litigation, tried the case and now responds on this appeal pro se. She is no stranger to the courtroom, having appeared pro se in the Civil and Criminal Courts of The City of New York as well as the Supreme Court. Some confusion was generated during trial because of plaintiff's simultaneous role as litigant, counsel, and witness. Liberties not otherwise due a litigant were permitted to be taken which may very well have influenced the sizeable verdict.

Plaintiff came to New York City from the midwest as a teenager, seeking an education at Hunter College and a career in modeling. She and defendant became lovers in 1973. Following travels on her own to Colombia and France, plaintiff returned to New York City and moved in with defendant at his apartment during the fall of 1973. After a few months defendant apparently lost interest and sought to sever the relationship. However, plaintiff followed defendant to Florida, where he had relocated presumably for business purposes. Plaintiff persisted in pursuing defendant in vain attempts to be taken back.

Toward the end of 1973 plaintiff allegedly advanced defendant somewhere between $3,000 and $11,000 for investment on her behalf in Florida. Plaintiff never received a return on this investment, which she claims to have expected by March 1974. The jury, accepting the higher figure, awarded plaintiff $11,000 on her cause of action for breach of contract.

The cause of action sounding in conversion stems from defendant's alleged refusal to return certain personal property held by defendant in Florida. According to defendant, plaintiff made about half a dozen trips to his apartment in Miami between Christmas 1973 and September 1974, in the futile hope that the relationship could be rekindled. Defendant permitted plaintiff to store some of her belongings in his apartment while she looked for quarters of her own in Florida. The jury awarded $10,000 in damages for failure to return this property.

The third cause of action, for which the jury awarded $1 million in damages, was for malicious prosecution stemming from a criminal complaint that plaintiff had assaulted defendant on a Manhattan street corner in June 1975. On that day plaintiff allegedly accosted defendant on the street, followed and hurled insults at him, and finally punched him in the eye. He sought medical treatment for his injury. At the trial of this case, the court excluded the hospital records from evidence. This was reversible error inasmuch as plaintiff had made an issue of whether the assault had taken place at all, asserting that defendant had been in Florida on that particular date. The hospital records, together with photographs of the facial injury, were highly relevant on this issue (see Cherico v. City of New York, 88 A.D.2d 889, 452 N.Y.S.2d 606).

Following the advice of counsel, defendant filed a criminal complaint against plaintiff for assault. Persisting in her denial that the assault ever took place, plaintiff insisted that defendant had been in Florida on the date in question, and had telephoned the complaint in through a contact of his at the New York County District Attorney's Office. Plaintiff was arrested on June 26 1975, eight days after the alleged assault, and was taken to the precinct where criminal charges were preferred against her. She alleged that the trauma of this experience caused her to lose her job and suffer from physical and emotional stress, thus jeopardizing her promising modeling career.

The conversion cause of action should have been dismissed, if not for lack of personal jurisdiction, then by reason of the statute of limitations. Plaintiff instituted suit by service of a bare summons in February 1976. Defendant noticed his appearance on March 9 of that year, with a demand for a complaint. No complaint was ever served within the required 20 days (CPLR 3012[b] ), nor for that matter at any time over the next four years. The time for serving a complaint was extended by stipulation to June 30, 1976, but it was not until March 1980 that plaintiff served a complaint accompanying a new summons. In the interim, defendant had never moved to dismiss the action for failure to comply with his demand.

The only complaint ever purportedly served was that which accompanied the new summons in 1980. Plaintiff thereby instituted a new action against defendant, and the earlier action wherein plaintiff had ignored a demand for a complaint should have been dismissed (Sutton v. Winston, 93 A.D.2d 884, 461 N.Y.S.2d 412).

Even assuming that the complaint accompanying the new summons in 1980 purported to be a continuation of the original action in which a complaint had not yet been served, a delay of nearly four years in serving a complaint amounts to abandonment of the action, especially in the absence of a valid excuse. CPLR 3215(c) provides that where a plaintiff fails within one year to move for default on an unanswered complaint, that complaint should be dismissed as abandoned. A fortiori, plaintiff's neglect to serve a complaint here for nearly four years should be deemed no less an abandonment of the earlier action.

The attempt to shift the blame for such unconscionable delay onto the shoulders of plaintiff's former attorney is not an acceptable excuse (Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186). The service of a stale complaint years after a demand for same, without a demonstration of excusable delay and a meritorious cause and without court order authorizing such belated service cannot defeat defendant's right to a dismissal for tardy service of a promptly rejected complaint (Dobbins v. County of Erie, 65 A.D.2d 934, 410 N.Y.S.2d 436). There was an abandonment of the first action (see Broder v. Broder, 91 A.D.2d 302, 458 N.Y.S.2d 573, affd. 59 N.Y.2d 858, 465 N.Y.S.2d 926, 452 N.E.2d 1254; Dunn v. Dunn, 86 A.D.2d 772, 448 N.Y.S.2d 277, app. dsmd. 56 N.Y.2d 591, 450 N.Y.S.2d 307, 435 N.E.2d 677). The 1976 summons sought $256,000, while the new action sought over $1 million. Moreover the 1980 complaint charged malicious prosecution, which could not have been encompassed in the February 1976 summons. The criminal prosecution was not terminated until May 1976. A cause of action for malicious prosecution accrues only when the criminal action is terminated (Dailey v. Smiley, 65 A.D.2d 915, 410 N.Y.S.2d 468).

In connection with the new summons filed with the complaint in 1980, plaintiff obtained an order permitting service by publication. Eleven days later plaintiff obtained a subsequent order permitting service by registered mail to the home of defendant's parents in Arizona. It was this set of papers that was rejected by defendant's attorney on the assumption that they were a belated attempt to revive a long since abandoned action. Plaintiff moved on March 18, 1980 for default judgment, by show cause order initially returnable March 25. Defendant cross-moved for dismissal of the complaint.

It is not clear whether plaintiff complied even with the terms of this rather unique manner of service. The order required service of the summons and complaint, together with the order, by registered mail, return receipt requested. The record contains a registered mail return receipt, indicating that the letter, with the sender described as "WRKS (Contest Dept.)", was mailed from New York on February 19, 1980, but was returned from Scottsdale, Arizona, the address of defendant's parents, marked "unclaimed". The affidavit of service by mail was not dated until April 17 (well after the bringing on of the default motion by show cause order). The affidavit does not indicate if the order authorizing the manner of alternative service was included in the papers, as that order had required.

In addition to service by mail, plaintiff engaged an Arizona process server to deliver the summons and complaint to the home of defendant's parents. The affidavit of the process server indicates that he rang the doorbell at the Scottsdale address of defendant's parents shortly before midnight on a Saturday night, and delivered the summons and complaint to an unidentified individual (not the defendant). Again, there is no indication that the order authorizing foreign service was also served, as required by the order.

Even if the new summons and its accompanying complaint were deemed properly served in commencement of a brand new action, thus avoiding a defense of abandonment in failing to serve a complaint in the original action in a timely fashion, the conversion cause of action would be barred by the three-year statute of limitations (...