ANTONUCCI v. BELL (2022)

The following e-filed documents listed on NYSCEF numbered 1-24 were read on this motion (Motion Sequence No.001).

Upon the foregoing, Motion Sequence #001 is resolved as follows:

ORDERED that Plaintiff's motion (Motion Sequence # 001) for default judgment against defendant REGINALD BELL is hereby GRANTED, and it is further,

ORDERED, that Judgment, on default, in the sum of $11,858.53 (Eleven Thousand Eight Hundred Fifty-Eight Dollars and Fifty-Three Cents) is entered against Defendant REGINALD BELL, with interest, from June 21, 2012.

ORDERED, that the Clerk of the Court shall enter judgment accordingly, and it is further,

ORDERED, that Plaintiff shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon Defendant.

Relevant Facts

A Richmond County jury convicted the Defendant of 1st Degree Manslaughter of Plaintiff's 20-year-old son on December 9, 2011. Defendant was sentenced to a determinate term of 20 years in prison and is currently incarcerated at the Fishkill Correctional Facility located in Beacon, New York. Plaintiff, pro se, a crime victim, pursuant to NY Executive Law § 632 [a], commenced the within action by Summons with Notice on January 3, 2022. Plaintiff seeks compensation for claims made under the New York State “Son of Sam” laws (NY Executive Law § 632 [a]) out of monies belonging to the defendant, obtained through settlement of a certain personal injury action. Said personal injury action was settled in the sum of $20,000.00 (Twenty Thousand Dollars and No Cents), while the Defendant was incarcerated at the Fishkill Correctional Facility. A portion of the funds are presently restrained pursuant to NY Executive Law § 632-[a], by injunction Ordered by Hon. Eugene P. DeVine, Justice of the Supreme Court, Albany County, on June 21, 2012 (See, NYS OVS v Reginald Bell, Index No. 958-12 [Albany Co.]).

Defendant, pro se, was personally served with the Summons with Notice on January 26, 2022. He served a Demand for Complaint through NYSCEF (dated January 17, 2022, Document No. 4) on January 31, 2022. However, Plaintiff had already filed a Complaint on January 28, 2022, via NYSCEF (Document No. 3). Subsequently, the Defendant filed an unorthodox document entitled “RESPONSE IN OPPOSITION TO COMPLAINT” on February 17, 2022, failing to address any of the individually stated allegations within Plaintiff's Complaint. Instead, the document, which is not sworn to under the penalty of perjury, gives the Defendant's account of the prior proceedings in Albany County, his understanding of his legal position, a request for dismissal of the Plaintiff's Complaint, and a request for the court to excuse any errors.

This matter was scheduled for a Preliminary Conference in IAS Part 7 on April 26, 2022. The Plaintiff appeared in court and the Defendant did not. The Defendant never communicated with the court via NYSCEF or any other means, to discuss the prospect of a virtual appearance, nor did he call to discuss the scheduled Preliminary Conference. The court granted the Defendant the courtesy of waiving his appearance and adjourned the matter for another date for Preliminary Conference, which coincided with the return date of Plaintiff's instant motion.

On April 28, 2022, Plaintiff, filed (via NYSCEF Document No. 15) a Notice of Motion for Default Judgment and Affirmation [sic] in Support. On May 17, 2022, Defendant filed (via NYSCEF Document No. 22) a document entitled “AFFIDAVIT IN OPPOSITION TO DEFAULT JUDGMENT.” Defendant's document is almost identical to the document he previously filed, entitled “RESPONSE IN OPPOSITION TO COMPLAINT.” To date, the Defendant has not filed a document entitled “Answer,” nor has he directly answered any of the allegations in the Complaint.

Discussion

A. Defendant's failure to file an Answer, and failure to cure after motion

An Answer is a Defendant's pleading. It has several chores to perform. The first is found in CPLR § 3018 [a], which requires the Defendant to respond to the Complaint with denials or admissions (New York Practice, 6th Ed., Siegel, David and Connors, Patrick, § 221, p.415 [2018]). Defendant herein has failed to deny or admit any of the allegations found within the Complaint, and has not attempted to cure the defect, after Plaintiff filed a motion for default judgment. Whether to extend time to answer a complaint and compel acceptance of a late answer pursuant to CPLR § 3012 (d), or to vacate a default for not filing an answer under CPLR 5015 (a) (1), defendant must provide a reasonable excuse and proof of a meritorious defense (see Maspeth Fed Sav & Loan Assn v McGown, 77 AD3d 890 [2d Dept 2010]; Midfirst Bank v. Al—Rahman, 81 AD3d 797 [2d Dept. 2011]; Karalis v New Dimensions HR, Inc., 105 AD3d 707 [2d Dept. 2013]; TCIF REO GCM, LLC v Walker, 139 AD3d 7945 [2d Dept 2016]). This standard governs applications made both prior and subsequent to a formal fixing of a default by the court (see Integon Natl Ins Co v Norterile, 88 AD3d 654 [2d Dept 2011]; Bank of New York v. Espejo, 92 AD3d 707 [2d Dept 2012]).

The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light, 278 AD2d 494 [2d Dept 2000]; Segovia v Delcon Constr Corp, 43 AD3d 1143 [2d Dept 2007]). Here, no excuse or rationale has been proffered by Defendant. The court will not sua sponte convert Defendant's “RESPONSE IN OPPOSITION TO COMPLAINT” to an Answer, as it would be impossible to do so. The Court can not determine, based upon the Defendant's filing, whether the Defendant denies, admits, or takes any other posture as to each of the allegations contained within the complaint. The Court can not pick and choose based upon the allegations made in Defendant's papers whether to allow it to constitute an Answer, a Motion, or something else. The Court cannot propagate a litigation strategy for any party, whether they are represented or not.

As Defendant has not established a reasonable excuse for his default, the court need not consider his claim of meritorious defenses contained within his opposition (see HSBC Bank USA v Miller, 121 AD3d 1044 [2d Dept 2014]; One W Bank FSB v Valdez, 128 AD3d 655 [2d Dept 2015]); Deutsche Bank National Trust Co v. Kuldip, 136 AD3d 969 [2d Dept 2016] Bank of NY Mellon v Colucci, supra; US Bank Natl Assn v Barr, supra; Bank of NY v Krausz, 144 AD3d 718 [2d Dept 2016]; Wells Fargo Bank v Pelosi; 159 AD3d 852 [2d Dept 2018]). Therefore, Plaintiff's motion is GRANTED to the extent of this Memorandum Decision and Order.

B. Pro Se Litigants

It is noteworthy that both Plaintiff and Defendant are pro se litigants in this case. Plaintiff and Defendant are not strangers to the Court system. The Defendant although incarcerated, was able to seek and retain counsel since at least 2011, while serving his current sentence. He has provided evidence of regular correspondence with an attorney via letter, in the exhibits attached to both of his filings in this action. The Second Department has maintained that “while courts may afford a pro se litigant “some latitude” (Duffen v State of New York, 245 AD2d 653, 653 [1997]), a pro se litigant “acquires no greater right than any other litigant” (Roundtree v Singh, 143 AD2d 995, 996, [1988]) “and will be held to the same standards of proof as those who are represented by counsel” (Duffen v State of New York, 245 AD2d at 654; see also Sporten v Samuel, 31 Misc 3d 151[A], [App. Term, 9th & 10th Jud. Dists. 2011]; Boltz v Ascolesi, 16 Misc 3d 133[A] [App Term, 2d & 11th Jud Dists 2007]; Tanenbaum Assoc, LLP v. Yudenfreund, 13 Misc 3d 138[A [App Term, 2d & 11th Jud Dists [2006]). While this court will generally accord “pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars” (Stoves & Stones, Ltd v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). The Defendant was sophisticated enough to avail himself of the NYSCEF filing system but failed to seek an appearance before this Court through electronic or virtual means. This court knows of no rule of law which would excuse a pro se litigant from compliance with procedural or other rules designed for the orderly conduct of an action.

Decretal Paragraphs

Accordingly, it is hereby,

ORDERED that Plaintiff's motion (Motion Sequence # 001) for default judgment against defendant REGINALD BELL is hereby GRANTED to the extent of this Memorandum Decision and Order, and it is further,

ORDERED, that Judgment, on default, in the sum of $11,858.53 (Eleven Thousand Eight Hundred Fifty-Eight Dollars and Fifty-Three Cents) is entered against Defendant REGINALD BELL, with interest, from June 21, 2012.

ORDERED, that the Clerk of the Court shall enter judgment accordingly, and it is further,

ORDERED, that Plaintiff's counsel shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon Defendant.

Any claim not specifically addressed herein is denied.

This shall constitute the Decision and Order of the court.

Ronald Castorina Jr., J.