Chetrick v. Cohen

266 A.D.2d 254, 698 N.Y.S.2d 255, 1999 N.Y. App. Div. LEXIS 11309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated August 4, 1998, which granted the motion of the defendants Mel Cohen, County of Suffolk, and Suffolk County Police Department, and the separate motion of the defendants Suffolk County District Attorney’s Office, James M. Catterson, Jr., Frank Morro, Jr., Glenn Murphy, and Richard T. Dunne pursuant to CPLR 511 to change venue from New York County to Suffolk County, and (2) an order of the same court dated November 13, 1998, which, upon reargument, adhered to the prior determination and also denied that branch of their motion which was for leave to enter a judgment against the defendants Suffolk County District Attorney’s Office, James M. Catterson, Jr., Frank Morro, Jr., Glenn Murphy, and Richard T. Dunne upon their failure to interpose a timely answer to the amended complaint.

Ordered that the appeal from the order dated August 4, 1998, is dismissed, as that order was superseded by the order dated November 13, 1998, made upon reargument, and it is further,

Ordered that the order dated November 13, 1998, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

Since the language of CPLR 504 is couched in mandatory terms, and the plaintiffs failed to show the existence of “compelling countervailing circumstances” (Ruiz v City of New York, 195 AD2d 327; Rogers v U-Haul Co., 161 AD2d 214, 215), the court did not improvidently exercise its discretion in granting the defendants’ separate motions to change the venue from New York County to Suffolk County (see, CPLR 504; Ruiz v City of New York, supra; Halloran v Halloran, 161 AD2d 562; see also, Rampe v Giuliani, 227 AD2d 605; Champion v City of New York, 203 AD2d 508).

The Supreme Court also properly denied the plaintiffs’ motion for leave to enter a judgment against the defendants Suffolk County District Attorney’s Office, James M. Catterson Jr., Frank Morro, Jr., Glenn Murphy, and Richard T. Dunne, notwithstanding their failure to interpose a timely answer to the amended complaint. Although these defendants conceded that the delay in serving their answer was due to law office failure, any delay in serving an answer was not willful and the plaintiffs were not prejudiced thereby (see, Bungay v Joy Power Prods., 243 AD2d 527).

The plaintiffs’ remaining contentions are either without merit or academic in light of this determination. Friedmann, J. P., Florio, Schmidt and Smith, JJ., concur.