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Quinson Kilgore, Claimant, v. The City of New York, Defendant. (2022)

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Civil Court, City of New York.

Quinson Kilgore, Claimant, v. The City of New York, Defendant.

Index No. SC-2188-19/BX

Decided: November 02, 2022

For claimant: Quinson Kilgore, Bronx, NY, Self-Represented For defendant: New York City Law Department, Bronx, NY

Nature of the Action

This action arises from the City taking custody of claimant's 2003 Acura TL Type S sedan and the City's subsequent handling of the car. Although the parties dispute the basis for the seizure, the parties do not dispute that the City seized and towed the vehicle from near in front of claimant's home on January 18, 2018. (Aff. in Supp., ¶ Ex. A). Claimant alleges that he contacted the New York City Police Department ("NYPD") after the seizure to retrieve the vehicle (which claimant asserts was mistakenly towed rather than a different presumably abandoned nearby vehicle), and that, on June 10, 2019, the City informed claimant that the car had been "lost" in City custody. As discussed later in this decision, the City did not in fact "lose" the car (with an estimated value of $2,850.00 and additional contents worth $2,000.00) but instead sold the car at auction to a scrap breaker for $75.00 on May 14, 2018. (Aff. in Supp., Exs. B and D). Claimant then commenced the instant action seeking money damages for the value of the car and its contents. (Statement of Claim, at 1).

The Instant Motion

On July 22, 2022, the instant action was scheduled for a hearing on the City's motion to dismiss (Motion Seq. No. 001) and (depending upon the outcome of the City's motion to dismiss) a bench trial on claimant's allegation that the City lost claimant's vehicle after having taken possession of it. While claimant appeared as directed, the City did not, and by separate orders dated July 22, 2022, the Court denied the City's motion to dismiss for non-appearance, proceeded to hold an inquest upon the City's default, and granted claimant judgment against the City. By notice of motion dated August 9, 2022, the City seeks an order vacating the default judgment in this action, restoring this action to the calendar for the purpose of granting the City leave to renew and reargue Motion Seq. No. 001 and, upon reargument or renewal, dismissing this action.1 For the reasons set forth below, the instant motion is denied in all respects.


Procedurally, the Court notes at the outset that while the City moves both to vacate its default and for leave to renew and reargue its earlier motion to dismiss, the City's motion does not sound in reargument or renewal as contemplated in CPLR 2221. The question before the Court is not whether the Court "overlooked any relevant facts or misapplied any controlling principle of law," in denying the City's motion to dismiss this action however, but whether the Court should vacate the City's default in both the motion to dismiss and the trial. People v. Oriol, Ind. No. 2744-2014, 2016 NY Misc. LEXIS 4906, *1 (Sup. Ct., Queens Co. Jan. 19, 2016) (citations omitted); and compare, CPLR 2221(a) with CPLR 2221(d)-(f). The Court did not misapprehend the City's non-appearance on July 22, 2022: the City did not answer the calendar call because it did not appear (which the City does not dispute) and the Court acted accordingly.2 Gerald Lebovits, Small Claims Manual, at 2 (6th ed. 2022) (noting that "[i]f a party fails to appear for the scheduled hearing, the court should enter a default, and refer the matter for an immediate inquest"); and, e.g., Definitive Healthcare v. Sun Knowledge Inc., 68 Misc 3d 1218(A), *5 (Civ. Ct., Kings Co. 2020) (discussing denial of motion on default for movant's non-appearance). Rather, the City seeks, at bottom, to vacate the Court's decision to find the City in default in both its motion to dismiss and in the instant action itself because of that non-appearance, based upon the City's post hoc explanation of why it failed to appear.3 As to the underlying merits of the City's motion to dismiss, they are now before the Court in considering whether the City has asserted a meritorious defense sufficient to vacate a default, rendering reconsideration under CPLR 2221 unnecessary. Accordingly, the Court construes the instant motion as seeking to vacate a decision on default pursuant to CPLR 2221(a)(1) and 5015(a)(1) and, to the extent necessary or in the alternative for clarity, denies the branch of the instant motion seeking leave to renew or reargue pursuant to CPLR 2221(d)-(f).4

Turning to that branch of the City's motion seeking to vacate its default for non-appearance, the controlling test is the traditional one: that the "party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense." Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 109 AD3d 699, 701 (1st Dept. 2013) (citation and quotation omitted). Both elements are equally necessary. Benson Park Assoc., LLC v. Herman, 73 AD3d 464, 465 (1st Dept. 2010) (affirming denial of motion to vacate default). While it is of course true that "the established policy of this State [is] that disputes be resolved on their merits rather than default and inquest whenever practical," and that courts often then vacate defaults, exceptions also arise in practice that "demonstrate[ ] why court approval should not be taken for granted." Koonce v. N.Y.S. Dept. of Finance, Index No. CV-021587-19/BX, slip op, at *2 (Civ. Ct., Bronx Co. May 4, 2022) (internal quotation and citation omitted); and Lane v Konnovich, Dkt. No. 16-cv-1245, 2016 U.S. Dist. LEXIS 65816, at *9 n. 3 (S.D.W.V. May 19, 2016). Looking at each element in turn, the Court finds that the City has established neither a reasonable excuse for its default nor a meritorious defense necessary to vacate the City's default.

The City Does Not Establish a Reasonable Excuse for Default

In arguing that it has a reasonable excuse for defaulting on July 22nd, the City relies upon two related, but separate, allegations: 1) that the City never received prior notice of the July 22nd appearance; and/or 2) the City's default was due to law office failure. (Aff. in Supp., ¶¶ 3, 6-9, 12, 14, 16; and Aff. in Reply, ¶ 3). In essence, the former would presumably be the fault of others, while the latter would be attributable to the City itself. In considering both, the Court finds that the City's default sounds principally in law office failure, but addresses both.

As noted in the court file for this action, the Court sent two notices of the July 22nd appearance (one each for the City's motion and for the trial) dated July 1, 2022 to each of the parties, to the addresses on file in this action. The notices were generated close in time according to the Court's electronic records, and claimant confirms that he received the copies sent to him. (Aff. in Opp., at 2). Nothing was returned to the clerk's office by the United States Postal Service, and mere denial of receipt is insufficient to overcome the presumption of mailing and receipt. See, e.g., Burr v Eveready Ins. Co., 253 AD2d 650, 651 (1st Dept. 1998) (discussing presumption of mailing standard); and Benson Park Assoc., supra. (noting that movant "offered nothing to substantiate" its position in moving to vacate a default). Accordingly, the Court finds that a presumption of mailing and receipt of the notices for July 22, 2022 is appropriate.

Turning to the City's other ground — law office failure — courts have consistently held that more than "conclusory references to law office failure without detail or evidentiary support," are necessary to excuse a default. Urban D.C. Inc. v. 29 Green St. LLC, 205 AD3d 634, 634 (1st Dept. May 26, 2022). The City's moving papers consist primarily of repeating that the City was not aware of the July 22nd appearance. (Aff. in Supp., ¶¶ 3; 6-9; 12; 14; 16; and Aff. in Reply, ¶ 3). Even assuming the City did not receive the printed notice to appear on July 22, 2022 (though the address in the court file for the City's counsel is the main address and central point of contact for the New York City Law Department at 100 Church Street in Manhattan) however, the City also assumed the risk of problems with receiving mail by seemingly not taking any of several prophylactic measures to keep abreast of appearances in this action. There is no record of the City submitting a completed information sheet to ensure that the Court had a correct mailing address for the City's attorneys, despite being directed to do so on December 8, 2021 and advised that "[f]ailure to complete and return this page within the next fourteen (14) days may result in the Court proceeding to conduct an inquest." (Court Notice to Defendant dated Dec 8, 2021, at 1) (emphasis added). There is no evidence that the City's counsel utilized the Court's free E-Track system, despite such use being "strongly recommended" as a means to "receive email updates and appearance reminders for Civil Supreme and Local Civil Court cases," presumably including this action. N.Y.S. Unified Ct. Sys., E-Track - Frequently Asked Questions (2022).5 E-Track, and the court system's recommendation that counsel take advantage of that free service as a failsafe for missing mail notices, predate the pandemic. See, e.g., First Jud. Dist., Sup. Ct., Civ. Branch, New York Co., News & Announcements: Formal Announcements & Informal Notices of Interest, New Judicial Assignments & Reassignments (Jan. 22, 2019) (advising members of the bar to use E-Track).6 Nor is there any indication that the City utilized private calendar notification services to track appearances in this action, despite the City's counsel having contracted for such services.7 The City's moving papers do not discuss any effort to contact the clerk's office by telephone or e-mail, nor do they indicate any attempts by the City's counsel to contact claimant.8 Rather, the record is devoid of any indication of action by the City at all after filing its motion to dismiss on February 27, 2020. "Notwithstanding the preference for deciding cases on the merits, this preference will not justify vacating a default judgment where the moving party has failed to satisfy its burden of establishing a reasonable excuse for the default," and the City has not offered any evidence of efforts to avoid the situation in which it finds itself. Liparulo v. N.Y.C. Health & Hosps. Corp., 193 AD3d 593, 594 (1st Dept. 2021) (affirming denial of motion to vacate).

As the First Department noted decades ago, "[t]he city's law firm cannot be exempted from those rules which govern the law firms of its opponents and of which the city, properly, is ready to take advantage," as "[t]he corporation counsel's office, too, has an obligation to conduct lawsuits in a disciplined and efficient manner." City of New York v. Ingber, 80 AD2d 773, 773 (1st Dept. 1981). The record before the Court does not indicate that the City utilized any of the tools available to it that might have prevented its default, and "[w]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse." U.S. Bank Trust, N.A. v. Gomez, 205 AD3d 839, 840 (2d Dept. May 11, 2022) (quotation and citation omitted). Finally, as the City is appearing through one of its own agencies in this action, and the client are counsel are once and the same entity, the principle that a client should not suffer because of errors of counsel does not apply in the traditional sense. See, e.g., De Leo v. Bartucci, 98 AD2d 708, 708 (2d Dept. 1983) (noting that then-recent "amendments by no means guarantee that a default will be excused in all cases," and denying vacatur where "defendant was an attorney appearing pro se," and "the results of his dilatory conduct will fall, not upon an innocent client, but only upon himself). Accordingly, the City has not established a reasonable excuse for its default.

The City Does Not Establish a Meritorious Defense

Putting aside the reasonableness of the City's default, the City would still need to establish that it has a meritorious defense to prevail in the instant motion. See, Facsimile Communications Indus., Inc. v NYU Hosp. Ctr., 28 AD3d 391, 391-392 (1st Dept. 2006). "Even where it is uncontroverted that defendant did not receive notice as defendant claims here, the failure to adequately demonstrate a meritorious defense will be fatal to defendant's motion to vacate." Peacock v. Kalikow, 239 AD2d 188, 189 (1st Dept. 1997). Accordingly, "the defaulting party is required to supply an affidavit of merits from a person competent to attest to the meritorious nature of the claim." Pomerantz v. Long Island Paneling Co., 150 AD2d 665, 665 (2d Dept. 1989). See also, Peacock, at 190.

The City asserts that it has a meritorious defense, outlined in its initial motion to dismiss (Motion Seq. No. 001) pursuant to CPLR 3211(a)(7), alleging that claimant did not file a timely notice of claim concerning this action as required by the General Municipal Law. While the Court did not reach the merits of the City's motion to dismiss in July when the City defaulted, it does so now in considering whether the City has a meritorious defense. Having the benefit of the City's initial opening papers (filed collectively in the instant motion as Aff. in Supp., Ex. A) and claimant's opposition (which appears to have been annexed to claimant's opposition to the instant motion), followed by the parties' papers in the instant motion (including the City's opening papers, claimant's opposition, and the City's reply, with exhibits from the parties), the Court has a full record with which to address the City's position.9 The Court is also able to take judicial notice of relevant publicly-available government records. J.A.M. Assocs. LLC, supra. For a variety of reasons the Court addresses in turn then, the Court finds that the City does not have a meritorious defense.

The City's Statute-of-Limitations Defense Fails on the Merits

Assuming arguendo that the City's delay in moving had not waived its statute-of-limitations defense, the City does not prevail on the substance of the motion either. Pursuant to General Municipal Law §§ 50-e and 50-i, claimant was required to serve notice of claim within 90 days of the date of the incident at issue, and to commence this action within a year and 90 days of the incident. The parties disagree about the operative date of the incident at issue and whether claimant served a timely notice of claim and commenced this action within the statute of limitations. As explained below, the Court finds that claimant did file a timely notice of claim and commenced this action within the statute of limitations, that the Court could grant leave to file a late notice of claim in this action as necessary, that the City waived a statue-of-limitations defense, and that the City is equitably estopped from asserting a statute-of-limitations defense in this action in any event.

A. The Action Was Commenced Within the Statute of Limitations

Claimant asserts that the date of loss was June 10, 2019, when claimant alleges that he was advised by NYPD that the City had "lost" the vehicle at issue in this action. (Statement of Claim, at 1). In fact, the vehicle was not "lost" as claimant was apparently informed, but rather was sold at auction. (Aff. in Supp., at ¶ 30). In his affidavit with supporting documents, claimant alleges that he served a notice of claim electronically on the New York City Comptroller (the "Comptroller's Office") on June 30, 2019, which he subsequently discovered had not been properly received due to a processing issue. (Aff. in Opp., at 2). After consulting with a representative of the Comptroller's Office and with Comptroller's Office's assistance, claimant re-submitted his notice of claim on September 24, 2019, and filed this action on September 26, 2019. (Aff. in Opp, at 2).

The City alleges that the date of claimant's loss was instead January 26, 2018, when the City took custody of claimant's vehicle and, therefore, even if claimant served notice of claim on June 30, 2019 as claimant alleges (which the City denies), the notice was still untimely.10 (Aff. in Supp., ¶¶ 24 and 29). Based upon a January 26, 2018 date of loss, the City argues that the statute of limitations expired on April 26, 2019. (Aff. in Supp., ¶ 29).

The City is incorrect on both counts. As stated in the statement of claim, claimant is specifically seeking relief for the City "losing" claimant's car while it was in the City's custody — about which claimant was informed on June 10, 2019 — not for the City's initial act of seizing claimant's car in January 2018. (Statement of Claim, at 1; Aff. in Opp, at 2-3; and Aff. in Opp of Motion to Dismiss, at 1). This action is not, contrary to the City's assertion, "an action to recover damages allegedly suffered by [claimant] on January 26, 2018 when [claimant's] vehicle was allegedly taken in error." (Aff. in Reply, ¶ 2). The seizure of claimant's car is a separate question from whether the City properly maintained custody of the car after seizing it: indeed, a seizure itself could be entirely lawful, while the City could be negligent (and thus liable) in its subsequent handling of a car in its custody. See, e.g., Terranova v. State, 111 Misc 2d 1089, 1094-1095 (Ct. Cl. 1982) (finding that seizure by law enforcement creates a bailment relationship). That the City did not in fact "lose" the car, but instead sold the car at auction, is of no moment in the instant action, as the question in a bailment action is whether the defendant properly maintained the claimant's property in safekeeping, which the City does not contest. The statute of limitations runs from the date of notice. Kelly v. Rochester, 98 Misc 2d 435, 440 (Sup. Ct., Monroe Co. 1979) (calculating date of loss from time-stamped notice to claimant). Thus, claimant stated a claim for which relief could be granted based upon a June 10, 2019 date of loss.

B. Claimant's June 30, 2019 Notice of Claim Was Timely

Claimant alleges that he served a notice of claim upon the Comptroller's Office electronically on June 30, 2019. (Aff. in Opp., at 2). Claimant further alleges that he subsequently learned from the Comptroller's Office the notice of claim "was not completely accepted due to an internal issue with the comptroller's online filing service," and that "[o]nce assisted and instructed by a comptroller online technician to once again upload the completed notice of claim, the system fully accepted the filing and a receipt was generated," on September 24, 2019. (Aff. in Opp, at 2).Although the City disputes claimant's allegations, the City's papers do not indicate any investigation of claimant's allegations (such as an affidavit from Comptroller's Office personnel concerning the state of the Comptroller's online claims processing system on June 30, 2019 or whether the Comptroller's Office had any records that corroborated or refuted claimant's allegations) in a manner the Appellate Divisions required in Pomerantz and Peacock.11 In contrast, claimant's allegations are partially corroborated. (Aff. in Opp, at 2). On the record before it, the Court finds that claimant served notice of claim in a timely manner on June 30, 2019.

C. The Court May, and Does, Deem the September 24, 2019 Notice of Claim Timely

Moreover, as this action was timely commenced, the Court is empowered to grant claimant leave to file a late notice of claim in any event. Specifically, the Court has authority to grant a claimant leave to file a notice of claim provided it was filed within the one year and 90 day statute of limitations. See, General Municipal Law § 50-e(5); and Small Claims Manual, at 44-45 (collecting authorities). As a general matter, courts have held that General Municipal Law § 50-e(5) "should not operate as a device to defeat the rights of persons with legitimate claims," and that the late claim provision "is remedial in nature, and so should be liberally construed." Barua v. City of New York, 2013 NY Slip Op 30781(U), *3 (Sup. Ct., New York Co. 2013) (quotations and citations omitted). Amongst the factors the Court is expressly compelled to consider by General Municipal Law § 50-e(5) in considering a late claim is "whether the delay in serving the notice of claim was based upon the failure of the computer system of the city or the claimant."

That claimant did not expressly articulate (either in his argument in chief or in the alternative) a cross-motion to accept a late notice of claim is of no moment at all. "Overwhelmingly, small claim litigants [as here] appear pro se and usually do not present any supportive legal theory for their claims, nor are they required to do so under the simplified procedure permitted, but in essence they rely upon the court for substantial justice." Seltzer v. New York Racing Assn., 134 Misc 2d 1038, 1039 (Civ. Ct., Kings Co. 1987). "The court, on the other hand, charged with the responsibility to administer substantial justice in the small claim action, must do whatever is necessary to aid the claimant to resist the motion to dismiss." Id., at 1040. The City's contrary position "denies access to justice for the unrepresented in courts meant to serve the unrepresented." Small Claims Manual, at 41. Accordingly, to the extent that claimant's notice of claim was untimely, the Court grants leave nunc pro tunc and deems the September 24, 2019 notice of claim timely.

The City's Statute-of-Limitations Defense is Waived

Even if the City's defense did not fail on the merits, the City did not move to dismiss until February 27, 2020, five months after this action was commenced, having already attended two appearances in this matter, and after the City had answered that it was ready for trial. (Aff. in Supp., ¶ 4).12 Although noticed as a motion to dismiss for failure to state a claim pursuant to CPLR 3211(a)(7), the City's motion relies entirely on a statute-of-limitations defense sounding in CPLR 3211(a)(5). (Aff. in Supp., ¶¶ 5; and 27-32; and Ex. A). However, a statute-of-limitations defense is waived if not asserted at the first opportunity in a motion or a pleading. CPLR 3018 and 3211(e). See also, Casazza v, City of New York Dept. of Design & Contr., 8 Misc 3d 1018(A), *2-3 (Civ. Ct., Richmond Co. 2005) (noting that "[t]he one year and ninety day period set forth in General Municipal Law § 50-i is a statute of limitations that must be raised on a motion to dismiss or as an affirmative defense"). The first opportunity in a small claims action is (where responsive pleadings are not required and pre-trial motion practice is generally disfavored) at the latest, when the City admits that it answered that it was ready for trial, on January 23, 2020.13 (Aff. in Supp., ¶ 4). There is no indication in the record or the City's papers that the City provided notice that it intended to assert a statute-of-limitations defense until its February 27, 2020 motion to dismiss. While the Court is mindful that "practice, procedure and forms [for small claims actions] shall differ from the practice, procedure and forms used in the court for other than small claims," the express purpose of the difference is to "constitute a simple, informal and inexpensive procedure for the prompt determination of such claims in accordance with the rules and principles of substantive law." CCA § 1802. In a small claims action, "delays are antithetical to small-claims litigation's basic purpose of providing swift, economical, and fair resolutions of parties' disputes." Small Claims Manual, at 144. The City's choice to participate in multiple appearances over a course of months without raising or preserving the City's statute-of-limitations defense, and to then assert it in formal motion practice later still, is not what the Legislature intended in enacting CCA § 1802, and the interests of justice do not favor construing small claims procedure to allow a sophisticated institutional litigant like the City the benefit of so much self-created delay in a forum specifically designed for prompt adjudication.14 That waiver alone would be fatal to the City's instant motion. See, Deutsche Bank Natl. Trust Co. v. Pietranico, 33 Misc 3d 528, 534-535 (Sup. Ct., Suffolk Co. 2011).

The City is Equitably Estopped from Asserting a Statute-of-Limitations Defense

In a related vein, while the strictures of the General Municipal Law are strictly enforced, enforcement is not absolute, and "a municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party." Konner v. N.Y.C. Transit Auth., 143 AD3d 774, 776 (2d Dept. 2016) (collecting cases); and Singh v. Metropolitan Transp. Auth., 153 AD3d 1152, 1153 (1st Dept. 2017) (citing Konner amongst others and holding that "courts may use [the] doctrine of equitable estoppel to notice of claim situations to ensure that statutes like [General Municipal Law § 50-e] do not become a trap") (quotation omitted). The First Department has specifically applied equitable estoppel to the City before. See, e.g., Rubino v. City of New York, 145 AD2d 285, 289 (1st Dept., 1989), citing Robinson v. City of New York, 24 AD2d 260 (1st Dept. 1965). Thus, even if the Court calculated the statute of limitations from May 14, 2018 when the City sold claimant's car, that would not have foreclosed the instant action.

There is no credible evidence in the record before the Court that claimant was advised that theCity disposed of his car prior to June 10, 2019 when Officer Rivera of the 43rd Precinct told claimant hat the car was "lost," and suggested he file a notice of claim. (Aff. in Supp., Ex. C, at 2). Indeed, the sole evidence offered by the City as proof of any prior knowledge — a NYPD property clerk voucher for claimant's car — offers no indication that a copy was ever provided to claimant prior to the commencement of this action or that claimant was advised that his car was being sold at auction.15 On the record before the Court, the City took custody of claimant's car, and did not advise him that it had lost or disposed of the car until June 10, 2019, when claimant asserts he was informed (incorrectly) by NYPD that the car had been lost.

Although the City boldly asserts that "the City is now severely prejudiced by the delay in this matter," that "plaintiff's delay in this matter has caused the vehicle to be sold at auction," and that if "[p]laintiff acted earlier, this matter could have been resolved without the disposal of the vehicle," the City offers little evidence in support of that assertion. (Aff. in Supp., ¶ 30). There is neither proof of delay on claimant's part in initially contacting NYPD or (more importantly) that any delay has had any deleterious effect on the City's ability to investigate the claim at issue. On the contrary, the City's own exhibits indicate that claimant took prompt initial action to seek the return of his car from NYPD, and provided proof of ownership to NYPD so that an inquiry could commence. (Aff. in Supp., Ex. C, at 2). There is nothing in the record to indicate that the City ever notified claimant that the car had been approved for destruction (which the property clerk voucher indicates occurred on March 31, 2018), that it had been sold to a breaker for $75.00 (which occurred on May 14, 2018), or that it had been released to the breaker for final destruction on June 1, 2018. (Aff. in Supp. of Motion to Dismiss, Ex. B). If anything, the City's own exhibits more strongly support a finding that NYPD seized claimant's car and actively mislead claimant about the whereabouts of his car and NYPD's actions in disposing of it, at which point claimant commenced the instant action sounding in bailment. To then rule in the face of that record, as the City urges, that NYPD's inaction in the face of claimant's inquiry should operate as a shield would permit the City to use the notice of claim requirement as a trap to avoid potential litigation in precisely the manner the Appellate Divisions condemned in Konner and Singh, and would produce an absurd result encouraging government agencies to simply withhold notice of potentially tortious acts until a claimant's time to claim had passed.

The Interests of Justice Do Not Support Granting the City Relief

Lastly, the City requests that the Court invoke its inherent powers to revisit the judgment. (Aff. in Supp., at ¶ 21). For all of the reasons stated previously, the interests of justice manifestly do not support relieving the City from the judgment in this action. The City does not assert that the Court's decision after inquest was against the weight of the evidence before it pursuant to CPLR 4404(b). If anything, the City's position is more supportive of awarding additional prejudgment interest from May 14, 2018 when the City acknowledges it sold claimant's car rather than from June 10, 2019 as originally ordered. However, the Court notes that it is "constrained to no more than the prayer for relief following inquest," and that claimant did not seek additional pre-judgment interest in opposing the instant motion. Bradumn v. Greenridge, Index No. SC-16023-21/BX, 2022 NY Misc. LEXIS 6202, *2-3 (Civ. Ct., Bronx Co. Oct. 17, 2022). In any event, the record before the Court, as amplified by the papers in the instant motion, supports that the judgment in this action does substantial justice between the parties. Accordingly, the Court declines to exercise its inherent power to revisit the judgment.


The City has established neither a reasonable excuse for its July 22, 2022 default in both the City's motion to dismiss and in the trial scheduled for this action, nor has the City established that it has a meritorious defense to claimant's cause of action. Therefore, there is no basis to revisit the judgment in this action.

Accordingly, it is

ORDERED that the instant motion is denied.

This constitutes the Decision and Order of the Court.

Dated: November 2, 2022

Bronx, New York


Hon. Jeffrey S. Zellan, J.C.C.


1.   The City did not seek a stay of enforcement of the judgment pending the determination of the instant motion.

2.   While the City submits that "a hearing was purportedly held on July 22, 2022," (emphasis added) the Court directs the parties to the electronic record of the proceedings had on July 22, 2022 concerning both the City's motion and the inquest and the written decisions and orders of the Court resulting from them. (Aff. in Supp., ¶ 3).

3.   The City's suggestion (Aff. in Supp., ¶ 24) that the Court somehow lacked discretion to deny its motion on default for non-appearance, especially given the Court's established policy of requiring appearances on motions as expressly authorized by 22 N.Y.C.R.R. § 208.11(b)(3)(ii), is utterly cavillous. This is particularly true in the context of a small claims action brought by a self-represented claimant, in which motions to dismiss are heavily disfavored in lieu of expeditiously proceeding to trial on the merits where the movant's arguments may be considered at trial. See, e.g., Fishman v. Allstate Ins. Co., Index No. SC-300-21/BX, slip op., at *1-2 (Civ. Ct., Bronx Co. Jul. 8, 2022) (collecting cases and denying pre-trial motion to dismiss small claims action).Any suggestion that the Court lacked discretion to proceed to inquest is equally cavillous, as 22 N.Y.C.R.R. §§ 208.14(b)(1) and 208.41(h) expressly authorized the Court to proceed to inquest upon defendant's non-appearance on July 22nd.

4.   The City also moves pursuant to 22 N.Y.C.R.R. § 208.14(c) and CPLR 2004, neither of which are applicable. 22 N.Y.C.R.R. § 208.14(c) concerns matters stricken from the calendar for both parties' non-appearance pursuant to 22 N.Y.C.R.R. § 208.14(b)(3), whereas this action was marked for inquest upon the City's default pursuant to 22 N.Y.C.R.R. § 208.14(b)(1). CPLR 2004 concerns extensions of time (which is not at issue in the instant motion), whereas CPLR 2005 concerns law office failure as a potential basis for excusing delay or default pursuant to, among other things, CPLR 5015(a). As the Court construes the City's instant motion as seeking relief pursuant to, among other things, CPLR 5015(a)(1), the provisions of CPLR 2005 have been considered and discussed later in this decision.

5.   Available at (last accessed Oct. 20, 2022). The Court is able to take judicial notice of relevant publicly-available government records and documents in considering a motion to vacate a default. See, e.g., J.A.M. Assocs. LLC v. Gomez, 75 Misc 3d 1219(A), *2 n. 2 (Civ. Ct., Bronx Co. Jun. 21, 2022) (taking judicial notice of records posted to public government website in considering motion to vacate default).

6.   Available at & _announcements.shtml (last accessed Oct. 20, 2022).

7.   N.Y.C. Office of the Comptroller, CheckbookNYC: Contract ID: CT102520200000334, (last accessed Oct. 22, 2022) (Law Department contract with, Inc. for "court-related information and notification services between Dec. 1, 2019 and Nov. 30, 2024).

8.   In contrast, the Court's electronic case management system reflects at least five different instances during the pendency of this action — December 7, 2021, December 8, 2021, March 15, 2022, April 6, 2022, and August 11, 2022 — when claimant contacted the clerk's office regarding this action.

9.   Although the jurats on claimant's affidavits appear incomplete, the City waived any defects in their form or admissibility by not objecting to them in a timely fashion. See, Lefkowitz v. Kelly, 170 AD3d 1148, 1150 (2d Dept. 2019) (finding that "[a]lthough it is true that the unsworn affidavit of the plaintiff's expert does not constitute competent evidence to oppose a motion for summary judgment, the defendants failed to raise this issue in the Supreme Court and, therefore, any deficiency in the plaintiff's submission has been waived"); and Christiansen v. Menna, 2022 NY Slip Op 30541(U), *4 (Sup. Ct., Kings Co. Feb. 17, 2022) (citing Lefkowitz and others in finding that litigant waived objection to unsworn motion opposition by not timely objecting).

10.   The City initially argued in moving to dismiss this action that the Court could, alternatively, rule on the motion based on a date of loss of either May 14, 2018 (when the City sold claimant's vehicle at auction) or, as alleged by claimant, June 10, 2019. (Aff. in Supp. of Motion to Dismiss, ¶¶ 10-11). Although the City included its initial motion papers as an exhibit to the instant motion (Aff. in Supp., Ex. A), the City makes no reference to alternative arguments in the instant motion, and appears to have abandoned those alternative arguments.

11.   If anything, the lack of evidence or affidavit testimony by the City despite the passage of years since the City first challenged service in 2020, and the City having submitted three different filings on this issue (the opening papers in support of the motion to dismiss, the opening papers in the instant motion, and the City's reply in the instant motion), coupled with the fact that relevant witnesses would presumably be Comptroller's Office staff within the City's control, favors a missing witness/evidence inference against the City. See, DeVito v. Feliciano, 22 NY3d 159, 165-166 (2013) (discussing standard for adverse inference).

12.   The City notes a number of different dates in arguing when it served and filed its motion to dismiss, none of which are materially different. (Notice of Motion, at 1; Aff. in Supp., ¶¶ 1; 5; and Ex. A). As the Court's electronic case management system indicates that the motion to dismiss was filed on February 27, 2020, the Court finds for convenience and consistency that the motion was filed on February 27, 2020.

13.    Helmsley Corp v. Parkchester S. Condominium, 75 Misc 3d 1222(A), *1 (Civ. Ct., Bronx Co. Mar. 28, 2022) (collecting cases and noting general disfavor for pre-trial motion practice in small claims actions).

14.   The Court notes that the City is generally barred from affirmatively waiving the statute of limitations by General City Law § 20(5), but the Appellate Divisions and the Court of Appeals have held that the City's failure to promptly assert a statute-of-limitations defense is subject to waiver as a matter of law for failure to move or plead it "for a municipal defendant, like any other." Rubino v. City of New York, 145 A.D. 285, 289 (1st Dept. 1989), citing Reilley v. City of New York, 273 A.D. 1014 (2d Dept.), affd. without op., 298 N.Y.710 (1948). To the extent some courts have held that the City may assert a waived statute-of-limitations defense later in litigation where there is no evidence of surprise or prejudice, those cases were not small claims actions where "delays are antithetical to small-claims litigation's basic purpose," and thus distinguishable. Small Claims Manual, at 144; contra., e.g., Hayes v. City of New York, 2020 NY Slip Op 30672(U), *5-6 (Sup. Ct., New York Co. 2020). As the First Department has noted, "[t]he corporation counsel's office, too, has an obligation to conduct lawsuits in a disciplined and efficient manner," which includes litigation consistent with the policy goals in creating the small claims process. Ingber, supra.

15.   The City's characterization of the NYPD property clerk voucher in the motion to dismiss appears to be troublingly inaccurate. Although described in the City's initial motion to dismiss as "the documentation that the plaintiff has provided," the document itself was generated by Police Officer Luis Cardenas (then of the 43rd Precinct), not claimant. and the copy the City offered in evidence notes itself that it was printed from NYPD's databases on February 16 or 18, 2020, mere days before the City filed its motion to dismiss. (Aff. in Supp. of Motion to Dismiss, ¶ 11, and Ex. B).

Jeffrey S. Zellan, J.

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