McGee v. Dunn

• Decision Date: 27 July 2010
• Citation: McGee v. Dunn, 75 A.D.3d 624, 906 N.Y.S.2d 74 (N.Y. App. Div. 2010)
• Parties: James P. McGEE, appellant, v. James DUNN, respondent.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 74

75 A.D.3d 624

James P. McGEE, appellant,

v.James DUNN, respondent.

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

July 27, 2010.

Rider, Weiner & Frankel, P.C., New Windsor, N.Y. (Darren H. Fairlie of counsel), for appellant.

Philip Douglas Marin, Carmel, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for libel and malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated November 5, 2008, which denied his motion for leave to enter judgment upon the defendant's default in answering the complaint and for an inquest on the issue of damages, and granted the defendant's cross motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.

The defendant was personally served with the summons and verified complaint on July 23, 2008, and failed to answer the complaint, appear, or move with respect thereto within the 20-day statutory period ( see CPLR 320[a] ). In late August 2008 the plaintiff moved for leave to enter a judgment against the defendant upon his default in answering and for an inquest on the issue of damages. The defendant cross-moved to dismiss the complaint pursuant to CPLR 3211(a). The Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss the complaint. We modify.

Although a defaulting defendant is deemed to have admitted all the allegations in the complaint, "the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination" ( Venturella-Ferretti v. Ferretti, 74 A.D.3d 792, 793, 901 N.Y.S.2d 551; see CPLR 3215 [b]; Green v. Dolphy Constr. Co., 187 A.D.2d 635, 636, 590 N.Y.S.2d 238). There is no " 'mandatory ministerial duty' " to enter a default judgment against a defaulting party ( Resnick v. Lebovitz, 28 A.D.3d 533, 534, 813 N.Y.S.2d 480, quoting Gagen v. Kipany Prods., 289 A.D.2d 844, 846, 735 N.Y.S.2d 225 [internal quotation marks omitted] ). Instead, the court mustdetermine whether the motion was supported with "enough facts to enable [the] court to determine that a viable cause of action exists" ( Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156; see Cardo v. Board of Mgrs., Jefferson Vil. Condo 3, 29 A.D.3d 930, 932, 817 N.Y.S.2d 315; Beaton v. Transit Facility Corp., 14 A.D.3d 637, 789 N.Y.S.2d 314). "In determining whether the plaintiff has a viable cause of action, the court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" ( Litvinskiy v. May Entertainment Group, Inc., 44 A.D.3d 627, 627, 841 N.Y.S.2d 882).

The Supreme Court properly denied the plaintiff's motion for leave to enter judgment upon the defendant's default in answering and for an assessment of damages, as the plaintiff's motion papers failed to set forth sufficient facts to enable the court to determine that there exists a viable cause of action to recover damages for either libel ( see Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365, 834 N.Y.S.2d 494, 866 N.E.2d 439; Rufeh v. Schwartz, 50 A.D.3d 1002, 1004, 858 N.Y.S.2d 194) or malicious prosecution ( see Baker v. City of New York, 44 A.D.3d 977, 979, 845 N.Y.S.2d 799; Paisley v. Coin Device Corp., 5 A.D.3d 748, 749-750, 773 N.Y.S.2d 582). However, the Supreme Court should not have granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint as it was not made prior to the time by which the defendant was required to serve an answer or notice of appearance ( see CPLR 320[a]; 3211[e] ). Furthermore, the defendant's motion failed to request an extension of time to answer or appear ( see CPLR 2004). In addition, the defendant's motion to dismiss the complaint...