Loeffler v. Glasgow

169 A.D.3d 1024

94 N.Y.S.3d 607

Lawrence LOEFFLER, Appellant,

v.Charles GLASGOW, et al., Respondents, et al., Defendant.

2016–12690

2016–12691

Index No. 28278/09

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

Argued - October 25, 2018

February 27, 2019

Law Offices of T.A. Agoglia, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III ], of counsel), for appellant.

Bryan J. Swerling, New York, NY, for respondents.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Bert A. Bunyan, J.), dated September 21, 2016, and (2) an order of the same court dated October 5, 2016. The order dated September 21, 2016, insofar as appealed from, granted the motion by the defendants Charles Glasgow and Debra Brown, inter alia, to vacate so much of a judgment of the same court entered November 8, 2013, as, in effect, upon their default, is in favor of the plaintiff and against them, to the extent of staying enforcement of any judgments and any settlement agreements entered in this action, and directing that certain discovery take place, including the exchange of medical authorizations and depositions of the parties. The order dated October 5, 2016, amended the first order by restoring the action to active status and vacating any previously filed notes of issue.

ORDERED that the order dated September 21, 2016, is modified, on the law and the facts, by adding a provision thereto stating that the issues to be determined in the subsequent proceedings in this action are limited to the issue of damages; as so modified, the order dated September 21, 2016, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated October 15, 2016, is affirmed, without costs or disbursements; and it is further,ORDERED that the matter is remitted to the Supreme Court, Kings County, for a full evidentiary hearing on the issue of damages, a new determination thereafter of the appropriate measure of damages, and the entry of an appropriate amended judgment.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained by him from a dog bite at premises owned by the defendant Debra Brown. Brown's husband, the defendant Charles Glasgow, was at the premises when the plaintiff was bitten and identified himself to the plaintiff as the landlord of the subject premises. Brown submitted an answer, but Glasgow defaulted in appearing and answering in the action. Thereafter, Brown defaulted in appearing at preliminary conferences. After an inquest, a default judgment was entered against the defendants in the principal sum of $500,000, consisting of $200,000 for past pain and suffering, and $300,000 for future pain and suffering. On June 2, 2016, Glasgow and Brown moved, inter alia, to vacate the default judgment after receiving notice of a Sheriff's sale of the premises. Brown contended she never received any documents in this action after the summons and complaint, and Glasgow contended he never received any documents related to this matter, and first learned about it after Brown informed him of the Sheriff's sale. The Supreme Court granted the motion, inter alia, to the extent of staying enforcement of the default judgment and directing that certain discovery take place, including the exchange of medical authorizations and depositions of the parties. The plaintiff appeals.

Here, to the extent that Glasgow and Brown sought relief pursuant to CPLR 5015(a)(1) based upon an excusable default, the motion was untimely because it was not made within one...