DE FALCO v. JRS CONFECTIONARY, INC, N.Y. App. Div., Judgment, Law, casemine.com

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Factual and Procedural Background

This case involves an appeal from orders relating to motions for default judgment and leave to serve an answer in a lawsuit initiated by James De Falco et al. against JRS Confectionary, Inc. and other defendants. Initially, JRS and individual defendants jointly moved to dismiss the complaint against the individual defendants pursuant to CPLR 3211(a)(7) for failure to state a cause of action. After the dismissal motion was granted, neither plaintiffs nor defendants served JRS with a notice of entry of the order, and JRS did not serve an answer within the original timeframe.

Subsequently, plaintiffs moved for leave to enter a default judgment against JRS due to its failure to answer, while JRS opposed and cross-moved for leave to serve an answer. The Special Term initially granted the plaintiffs’ motion for default judgment and denied JRS’s cross motion for leave to serve an answer due to procedural defects. JRS then moved for renewal and reargument of that decision, which was denied. Eventually, a default judgment was entered against JRS for $4,500, and JRS’s cross motion was denied. The appellate court reversed the order granting default judgment and denied against JRS’s cross motion, allowing JRS to serve an answer.

Legal Issues Presented

Whether JRS was in default for failing to serve an answer after joining a motion to dismiss pursuant to CPLR 3211(a)(7).
Whether the plaintiffs’ failure to serve JRS with a copy of the order with notice of entry affected the time for JRS to serve an answer under CPLR 3211(f).
Whether the cross motion by JRS for leave to serve an answer should have been granted despite procedural defects in service.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Metropolitan Prop. Liab. Ins. Co. v. Boisette, 105 A.D.2d 785	No appeal lies from an order denying renewal and/or argument of a decision.	Supported the dismissal of appeals from orders denying renewal and/or reargument.
United Equity Servs. v. First Am. Tit. Ins. Co., 75 Misc.2d 254	Under CPLR 3211(f), the time to answer is extended until 10 days after service of the order deciding the motion with notice of entry.	Used to establish that JRS’s time to answer was extended due to its joinder in the motion to dismiss.
Charshee v. Geraghty, 198 N.Y.S.2d 686	Failure to serve a copy of the order with notice of entry does not limit the time to answer.	Supported the conclusion that JRS was not in default because plaintiffs did not serve the order with notice of entry.

Court's Reasoning and Analysis

The court analyzed the procedural posture under CPLR 3211(f), which provides that when a defendant joins a motion to dismiss for failure to state a cause of action, the time to answer is extended until 10 days after service of the order deciding the motion with notice of entry. Because plaintiffs failed to serve JRS with a copy of the order and notice of entry, JRS’s time to answer was not shortened. Consequently, JRS was not in default for failing to serve an answer within the original time frame.

The court found that Special Term erred in granting plaintiffs’ motion for leave to enter a default judgment against JRS. Furthermore, the court noted that JRS demonstrated a meritorious defense, reinforcing the propriety of allowing JRS to serve an answer. The procedural defect in service of the cross motion was not sufficient to deny JRS the opportunity to answer.

Holding and Implications

The court’s final decision was to REVERSE the order dated May 16, 1984 that granted plaintiffs’ motion for leave to enter a default judgment against JRS and denied JRS’s cross motion. Instead, the court DENIED the plaintiffs’ motion for default judgment and GRANTED JRS’s cross motion for leave to serve an answer within 10 days after service of the order with notice of entry.

The direct effect of this decision is that JRS is permitted to defend the lawsuit by serving an answer, and the default judgment against it is vacated. The court’s ruling did not establish new precedent but clarified the application of CPLR 3211(f) and procedural requirements for service of orders affecting time to answer.

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JAMES DE FALCO et al., Respondents, v. JRS CONFECTIONARY, INC., Appellant, et al., Defendants.

Appeals from the orders dated March 7, 1984 and May 2, 1984, respectively, dismissed. No appeal lies from an order denying renewal and/or argument of a decision (see, Matter of Metropolitan Prop. Liab. Ins. Co. v. Boisette, 105 A.D.2d 785).

Order dated May 16, 1984 reversed, the plaintiffs' motion for leave to enter a default judgment denied, and JRS's cross motion for leave to serve an answer granted. The answer shall be served within 10 days after service upon JRS of a copy of the order to be made hereon, with notice of entry.

JRS is awarded one bill of costs.

Before its time to answer the plaintiffs' complaint had expired, JRS joined the individual defendants in moving pursuant to CPLR 3211 (a) (7) to dismiss the complaint as against the individual defendants for failure to state a cause of action. After this motion was granted, neither the plaintiffs nor the defendants served a notice of entry of the order pursuant to CPLR 3211 (f) upon JRS, and JRS never served an answer.

The plaintiffs subsequently moved for leave to enter a default judgment against JRS. JRS opposed the motion and cross-moved for leave to serve an answer.

In a decision dated December 5, 1983, Special Term held that the plaintiffs' motion for leave to enter a default judgment against JRS should be granted on the ground that JRS had failed to serve an answer and was in default. The decision also denied JRS's cross motion, without prejudice to renew on proper papers, because the cross motion was not served in accordance with CPLR 2214 (b).

JRS then moved pursuant to CPLR 2221 for renewal and/or reargument of the December 5, 1983 decision, but this motion was denied in the order dated March 7, 1984.

By order to show cause, JRS then moved for an order vacating the March 7, 1984 order and granting reargument and/or renewal of the December 5, 1983 decision. This motion was denied in the order dated May 2, 1984.

On May 16, 1984, an order was then signed granting the plaintiffs' motion for leave to enter a default judgment against JRS, in the principal sum of $4,500, and denying JRS's cross motion for leave to serve an answer.

It was error for Special Term to have granted the plaintiffs' motion for leave to enter a default judgment against JRS. Because JRS had joined in a motion to dismiss pursuant to CPLR 3211 (a) (7), pursuant to CPLR 3211 (f), its time to answer would not expire until 10 days after service upon it of a copy of the order deciding the motion with notice of entry (cf. United Equity Servs. v. First Am. Tit. Ins. Co., 75 Misc.2d 254).

Since the plaintiffs failed to serve a copy of the order with notice of entry upon JRS, its time to answer was not limited (see, Charshee v. Geraghty, 198 N.Y.S.2d 686). Therefore, JRS was not in default for failing to serve an answer, and its cross motion for leave to serve an answer should have been granted.

We also note that JRS has demonstrated the existence of a meritorious defense. Mangano, J.P., Gibbons, Niehoff and Kunzeman, JJ., concur.

DE FALCO v. JRS CONFECTIONARY, INC