Pipinias v. J. Sackaris & Sons, Inc.

• Decision Date: 09 April 2014
• Citation: 983 N.Y.S.2d 587,2014 N.Y. Slip Op. 02419,116 A.D.3d 749
• Court: New York Supreme Court — Appellate Division
• Parties: Ioannis PIPINIAS, respondent, v. J. SACKARIS & SONS, INC., et al., appellants.

116 A.D.3d 749
983 N.Y.S.2d 587
2014 N.Y. Slip Op. 02419

Ioannis PIPINIAS, respondent,
v.
J. SACKARIS & SONS, INC., et al., appellants.

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

April 9, 2014.

[983 N.Y.S.2d 588]

Zaremba Brownell & Brown PLLC, New York, N.Y. (Richard J. Brownell and Erica Anderson of counsel), for appellants.

Coffinas Law Firm, PLLC, New City, N.Y. (Lawrence B. Goodman of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated December 5, 2012, as denied their motion, inter alia, to dismiss the complaint as abandoned pursuant to CPLR 3215(c), and granted those branches of the plaintiff's cross motion which were, in effect, to extend his time to file proof of service as to the defendant Lawrence Mirro, nunc pro tunc, to the date upon which such proof of service was actually filed, and to direct the defendants to appear and answer.

ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendant J. Sackaris & Sons, Inc., as abandoned pursuant to CPLR 3215(c), and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting that branch of the plaintiff's cross motion which was to direct the defendant J. Sackaris & Sons, Inc., to appear and answer, and substituting therefor a provision denying that branch of the plaintiff's cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries in December 2002. By service of an order to show cause dated August 21, 2012, the defendants moved, inter alia, to dismiss the complaint as abandoned pursuant to CPLR 3215(c).

CPLR 3215(c) provides, with regard to default judgments, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.”

With regard to the defendant Lawrence Mirro, the defendants contend, and the plaintiff concedes, that proof of service of the summons and complaint was not

[983 N.Y.S.2d 589]

filed within 20 days of service as required by CPLR 308(2). The plaintiff correctly asserts that since the late filing of proof of service as to Mirro was a nullity and Mirro's time to answer never began to run, the plaintiff therefore could not have previously obtained a default judgment against Mirro and the provisions of CPLR 3215(c) do not apply as to Mirro ( see Paracha v. County of Nassau, 228 A.D.2d 422, 424, 643 N.Y.S.2d 637;see also Zareef v. Lin Wong, 61 A.D.3d 749, 749, 877 N.Y.S.2d 182;Bank of New York v. Schwab, 97 A.D.2d 450, 450, 467 N.Y.S.2d 415). Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record which could not have been avoided if brought to the attention of the Supreme Court at the appropriate juncture ( see Guy v. Hatsis, 107 A.D.3d 671, 671–672, 966 N.Y.S.2d 212;Byrne v. Nicosia, 104 A.D.3d 717, 719, 961 N.Y.S.2d 261;Muniz v. Mount Sinai Hosp. of Queens, 91 A.D.3d 612, 618, 937 N.Y.S.2d 244;Needleman v. Tornheim, 88 A.D.3d 773, 774, 930 N.Y.S.2d 896). Accordingly, we reach this issue. Since Mirro's time to answer never began to run and the plaintiff could not have...