Patel v. N.Y.C. Transit Auth.
| Decision Date | 17 November 2021 |
| Docket Number | Index No. 526069/18,2019–07795 |
| Citation | 154 N.Y.S.3d 470 (Mem),199 A.D.3d 925 |
| Parties | Rajan PATEL, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
199 A.D.3d 925
154 N.Y.S.3d 470 (Mem)
Rajan PATEL, appellant,
v.
NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
2019–07795
Index No. 526069/18
Supreme Court, Appellate Division, Second Department, New York.
Argued—September 28, 2021
November 17, 2021
Lipsig Shapey Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant.
Anna J. Ervolina, Brooklyn, NY (Harriet Wong of counsel), for respondents.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lizette Colon, J.), dated June 5, 2019. The order granted the defendants’ motion to compel the plaintiff to accept service of their answer and denied, as academic, the plaintiff's motion, inter alia, for leave to enter a default judgment against the defendant New York City Transit Authority.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants on December 26, 2018, to recover damages for personal injuries he allegedly sustained as a result of being struck by a subway train at the Utica Avenue Station in Brooklyn. By notice of motion dated March 7, 2019, the plaintiff moved for leave to enter a default judgment against the defendant New York City Transit Authority (hereinafter NYCTA). The NYCTA opposed the plaintiff's motion, and on March 25, 2019, the defendants collectively served an answer with affirmative defenses on the plaintiff. The plaintiff's counsel failed to appear for oral argument on the return date of the plaintiff's motion for leave to enter a default judgment against the NYCTA and the Supreme Court denied the motion in an order dated April 12, 2019. Thereafter, by notice of motion dated April 29, 2019, the defendants moved pursuant to CPLR 3012(d) to compel the plaintiff to accept service of the answer. In support of the motion, counsel for the defendants explained, inter alia, that he had failed to timely serve and file an answer "[d]ue to an inadvertent clerical error in failing to calendar the...
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