Myers v. Slutsky
| Decision Date | 25 April 1988 |
| Citation | 527 N.Y.S.2d 464,139 A.D.2d 709 |
| Parties | Gwendoline MYERS, Appellant, v. Samuel SLUTSKY, Defendant, Geraldine Foster, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ritter, Nagler & Neufeld, New York City (Gerald Neufeld, of counsel), for appellant.
Waxman, Miller & Trautwig, P.C., Great Neck (Michael Majewski, of counsel), for respondent.
Before LAWRENCE, J.P., and EIBER, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court Kings County (Shaw, J.), dated May 5, 1987, which granted the defendant Foster's motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as it is asserted against her.
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
CPLR 3215(c) provides that if the plaintiff .
The plaintiff commenced this action by the service of a summons and complaint upon the defendant Foster on March 3, 1983. On or about August 23, 1985, the defendant Foster interposed an answer generally denying the allegations set forth in the complaint, asserting several affirmative defenses, and setting forth a cross claim for contribution and/or indemnification against the codefendant Slutsky. Simultaneously therewith, the defendant Foster demanded the production of various documents, a bill of particulars, and oral depositions. A bill of particulars was served shortly thereafter. Apparently nothing further has been done in the case since that time. By notice of motion dated February 17, 1987, the defendant Foster moved to dismiss the complaint insofar as it is asserted against her under CPLR 3215(c), which motion was granted in the order appealed from.
It is the plaintiff's contention that the defendant's belated service of an answer, along with discovery demands, constituted a waiver of the defendant Foster's right to seek dismissal of the complaint pursuant to CPLR 3215(c). We agree.
The defendant Foster's appearance, answer and discovery demands, acted as a waiver of any rights she may have had to a dismissal of the complaint pursuant to CPLR 3215(c). The last sentence of that section specifically provides that a motion by a defendant to dismiss would not be considered an appearance. The clear implication of that language is that the reverse is generally true, namely, that the filing of a notice of appearance and answer would generally be an appearance in the action and therefore make the provisions of CPLR 3215(c) inapplicable to a default in appearing and answering.
The mere fact that the legislative intent underlying CPLR 3215(c) was to prevent the plaintiffs from unreasonably delaying the determination of an action, does not foreclose the possibility that a defendant may waive the right to seek a dismissal pursuant to the section by his or her conduct. CPLR 3215(c) prevents a plaintiff from taking advantage of a defendant's default where the plaintiff has also been guilty of inaction. The service of an answer and demand by a defendant, without taking advantage of the provisions of CPLR 3215(c), constitutes a waiver of the benefits of that section, just as a plaintiff's acceptance of an answer constitutes a waiver of a...
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Torres v. Jones
...be reinstated (see generally HSBC Bank USA v. Lugo, 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 [1st Dept.2015] ; Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464 [2d Dept.1988] ; cf. Perricone v. City of New York, 62 N.Y.2d 661, 663, 476 N.Y.S.2d 282, 464 N.E.2d 980 [1984] ).III.The evidence ......
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Torres v. Jones
...be reinstated (see generally HSBC Bank USA v. Lugo, 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 [1st Dept.2015] ; Myers v. Slutsky, 139 A.D.2d 709, 710, 527 N.Y.S.2d 464 [2d Dept.1988] ; cf. Perricone v. City of New York, 62 N.Y.2d 661, 663, 476 N.Y.S.2d 282, 464 N.E.2d 980 [1984] ).III.The evidence ......
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Private Capital Grp., LLC v. Hosseinipour
...3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( Myers v. Slutsky , 139 A.D.2d 709, 711, 527 N.Y.S.2d 464 ; see De Lourdes Torres v. Jones , 26 N.Y.3d 742, 772, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; HSBC Bank USA, N.A. v. Grella , ......
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Rattley v. City of N.Y.
...the defendants having waived benefits of the rule in light of the extensive procedural history here (see, Myers v. Slutsky, 139 A.D.2d 709, 527 NYS2d 464 [2d Dept. 1988]; HSBC USA v. Lugo, 127 A.D.3d 502, 9 N.Y.S.3d 6 [1st Dept. 2015]). Moreover, this protracted history would not support a ......