Preview
FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
SUPREME COURT
STATE OF NEW YORK COUNTY OF LEWIS
VILLAGE OF COPENHAGEN,
NOTICE OF ENTRY
Plaintiff, Index No.: EFCA2023-000044
-against-
THE COPENHAGEN FIRE DEPARTMENT, INC.,
and TERENCE J. WILLIAMS, JR., AS FORMER
CHIEF OF THE COPENHAGEN VOLUNTEER
FIRE DEPARTMENT.
Defendants.
PLEASE TAKE NOTICE that the within is a copy of a Decision and Order duly
made and entered in the within-entitled action and filed in the office of the Clerk of the
Supreme Court, Lewis County on February 13, 2024.
Dated: February 15, 2024 HANNIGAN LAW FIRM PLLC
TERENCE . HANN I
Attorneys for Defend · the Copenhagen Fire
Department, Inc and Terence J. Williams, Jr.,
as Former Chief of the Copenhagen Volunteer
Fire Department
388 Kenwood Avenue
Delmar, New York 12054
Phone: (518) 869-9911
Terry@hannigan.Iaw
TO: Via NYSCEF
Candace L. L. Randall, Esq.
Campany, McArdle & Randall, PLLC
7571 South State Street
P.O. Box 311
Lowville, NY 13367
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FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024
At a term of the Supreme Court of the
State of New York, held in and for the
County of Lewis at the Lewis County
Supreme Court, 7660 North State
Street, Lowville, New York, on the 7th
day of December,2O23.
STATE OF NEWYORK
o SUPREME COURTCOUNTY OF LEWS
Village of Copenhagen, DECIStON
AND ORDER
Plaintiff,
RJI No. EFCA2023-0000214
Motion No. 3
The Copenhagen Fire Department, lnc.,
and Terence J. \Mlliams, Jr., as Former
Chief of the Copenhagen Volunteer Fire
Department,
Defendants.
APPEARANCES: Candace L. L. Randall, Esq.
o Attorneys for Plaintiffs
Terence S. Hannigan, Esq.
Attorneys for Defendants
Merrell. G. C. , J.S.C.
Plaintiff Village of Copenhagen, commenced this action on February 6, 2023, and
simultaneously filed an Order to Show Cause seeking a preliminary injunction,
restraining Defendants from accessing funds containing several bank accounts and/or
assets or which Plaintiff claims ownership. Defendants filed opposition papers to the
motion for a preliminary injunction, issued subpoenas, appeared in Court by their
=
counsel, and participated in an evidentiary hearing conducted with regards to the
motion. The Court thereafter issued an Order, dated July 3, 2023 preliminarily
enjoining Defendants from accessing funds in a bank account claimed by Plaintiff and
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NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024
from using or disposing of certain fire equipment apparatus and vehicles claimed by the
Plaintiff as Town property for the pendency of this action. Defendants filed and served
an Answer to the Complaint on November 30,2023 which was rejected as untimely.
Plaintiff now moves, pursuant to CPLR S 3215, for an Order granting a default
judgment against Defendants, The Copenhagen Fire Department, lnc., and Terence J
Williams, Jr., as former Chief of the Copenhagen Volunteer Fire Depa(ment. The
motion is opposed by Defendants.
CPLR 3215 permits entry of a default judgment, when a Defendant has failed to
appear, plead, or proceed to trial of an action reached and called for trial. CPLR Rule
320 provides that a Defendant appears by serving an answer, or a notice of
appearance, or by making a motion, which has the effect of extending the time to
answer.
It is well seftled that, in order to establish it's entitlement to vacate a default
Defendants are required to establish both the reasonable excuse for the default and the
existence of meritorious defense Genesee Manaqement lnc. v Barrette, 4 AD3d 874 14rn
Dept. 2004).
The quantum of proof required to prevail on a motion to vacate default judgment
is not as great as it required to post summary judgment. Bilodeau-Redeve v Preferred
Mutual lns. Co., 38AD3d 1271 14,n Dept. 2007).
ln opposition to the motion, Defendants contend that their delay in answering
=
was insignificant; that Plaintiff has not suffered any prejudice by the service of a late
answer; that there is a reasonable excuse for the delay in serving an answer and that
Defendants have continuously maintained a meritorious defense to the action.
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NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024
Defendants further note that defaults are contrary to public policy and that a disposition
of the matter on the merits is favored.
Although CPLR 320(a) indicates only three ways by which a Defendant appears
in an action- serving a notice of appearance, making a motion that has the effect of
extending the time to answer, or serving the answer - Courts will also apply the doctrine
of "informa! appearance". A Defendant's activity-based informal appearance will
prevent the entry of a default judgment if such appearance occurs within the time limits
imposed by CPLR 320(a) for a formal appearancd. Deutsche Bank Nat'l Trust v Hall,
185 AD3d lOOO (2nd Dept. 2O2O). Here Defendants actively participated in the litigation
for several months. See e.9.. Ke!!v v Garuda, 189 AD3d 807 12na Dept. 2020).
Defendants timely appeared in the action by opposing the Order to Show Cause,
appearing at oral argument and conducting a hearing and are not in default. Jeffers v.
Stein, 99 AD3d 970 12na Dept. 2012). Their failure to serve an answer caused no
prejudice to Plaintiff, as the assets sought by Plaintiff have been preserved until a final
determination is made as to ownership. ln addition, Defendants have set forth a
potentially meritorious defense and reasonable excuse for the delay.
Defendants met their burden by establishing there is support for their defenses
Callahan Hydraulics v Mechanical Man Car Wash Mfo. Co., 43 AD2d 896, 897 (4th Dept.
1974). \A/here a moving party meets that burden, Courts have a liberal policy with
respect to vacating defaults. Bilodeau-Redeye v Preferred Mutual, supra Crandall v
Wriqht Wisner, 59 AD3d 1059 (4th Dept. 2009); Davidson v Straiqht Line Contractors, 75
AD3d 1143 (4th Dept. 2010).
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NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024
Plaintiff's motion is therefore denied. The Court is issuing herewith a Scheduling
Order directing Defendants to file and serve an answer by March 4,2024.
The foregoing constitutes the Decision and Order of the Court.
ENTER
c Dated: February 13,2024
C
Justice of the Supreme Court
c
=
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NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024
INDEX NO. EFCA2023-000044
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024
Submissions:
A!! documents filed under Motion number three (3) in New York State Court's
Electronic Filings.
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Preview
FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 SUPREME COURT STATE OF NEW YORK COUNTY OF LEWIS VILLAGE OF COPENHAGEN, NOTICE OF ENTRY Plaintiff, Index No.: EFCA2023-000044 -against- THE COPENHAGEN FIRE DEPARTMENT, INC., and TERENCE J. WILLIAMS, JR., AS FORMER CHIEF OF THE COPENHAGEN VOLUNTEER FIRE DEPARTMENT. Defendants. PLEASE TAKE NOTICE that the within is a copy of a Decision and Order duly made and entered in the within-entitled action and filed in the office of the Clerk of the Supreme Court, Lewis County on February 13, 2024. Dated: February 15, 2024 HANNIGAN LAW FIRM PLLC TERENCE . HANN I Attorneys for Defend · the Copenhagen Fire Department, Inc and Terence J. Williams, Jr., as Former Chief of the Copenhagen Volunteer Fire Department 388 Kenwood Avenue Delmar, New York 12054 Phone: (518) 869-9911 Terry@hannigan.Iaw TO: Via NYSCEF Candace L. L. Randall, Esq. Campany, McArdle & Randall, PLLC 7571 South State Street P.O. Box 311 Lowville, NY 13367 1 1 of 6 FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024 At a term of the Supreme Court of the State of New York, held in and for the County of Lewis at the Lewis County Supreme Court, 7660 North State Street, Lowville, New York, on the 7th day of December,2O23. STATE OF NEWYORK o SUPREME COURTCOUNTY OF LEWS Village of Copenhagen, DECIStON AND ORDER Plaintiff, RJI No. EFCA2023-0000214 Motion No. 3 The Copenhagen Fire Department, lnc., and Terence J. \Mlliams, Jr., as Former Chief of the Copenhagen Volunteer Fire Department, Defendants. APPEARANCES: Candace L. L. Randall, Esq. o Attorneys for Plaintiffs Terence S. Hannigan, Esq. Attorneys for Defendants Merrell. G. C. , J.S.C. Plaintiff Village of Copenhagen, commenced this action on February 6, 2023, and simultaneously filed an Order to Show Cause seeking a preliminary injunction, restraining Defendants from accessing funds containing several bank accounts and/or assets or which Plaintiff claims ownership. Defendants filed opposition papers to the motion for a preliminary injunction, issued subpoenas, appeared in Court by their = counsel, and participated in an evidentiary hearing conducted with regards to the motion. The Court thereafter issued an Order, dated July 3, 2023 preliminarily enjoining Defendants from accessing funds in a bank account claimed by Plaintiff and 1 1 of 5 2 of 6 FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024 from using or disposing of certain fire equipment apparatus and vehicles claimed by the Plaintiff as Town property for the pendency of this action. Defendants filed and served an Answer to the Complaint on November 30,2023 which was rejected as untimely. Plaintiff now moves, pursuant to CPLR S 3215, for an Order granting a default judgment against Defendants, The Copenhagen Fire Department, lnc., and Terence J Williams, Jr., as former Chief of the Copenhagen Volunteer Fire Depa(ment. The motion is opposed by Defendants. CPLR 3215 permits entry of a default judgment, when a Defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial. CPLR Rule 320 provides that a Defendant appears by serving an answer, or a notice of appearance, or by making a motion, which has the effect of extending the time to answer. It is well seftled that, in order to establish it's entitlement to vacate a default Defendants are required to establish both the reasonable excuse for the default and the existence of meritorious defense Genesee Manaqement lnc. v Barrette, 4 AD3d 874 14rn Dept. 2004). The quantum of proof required to prevail on a motion to vacate default judgment is not as great as it required to post summary judgment. Bilodeau-Redeve v Preferred Mutual lns. Co., 38AD3d 1271 14,n Dept. 2007). ln opposition to the motion, Defendants contend that their delay in answering = was insignificant; that Plaintiff has not suffered any prejudice by the service of a late answer; that there is a reasonable excuse for the delay in serving an answer and that Defendants have continuously maintained a meritorious defense to the action. 2 2 of 5 3 of 6 FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024 Defendants further note that defaults are contrary to public policy and that a disposition of the matter on the merits is favored. Although CPLR 320(a) indicates only three ways by which a Defendant appears in an action- serving a notice of appearance, making a motion that has the effect of extending the time to answer, or serving the answer - Courts will also apply the doctrine of "informa! appearance". A Defendant's activity-based informal appearance will prevent the entry of a default judgment if such appearance occurs within the time limits imposed by CPLR 320(a) for a formal appearancd. Deutsche Bank Nat'l Trust v Hall, 185 AD3d lOOO (2nd Dept. 2O2O). Here Defendants actively participated in the litigation for several months. See e.9.. Ke!!v v Garuda, 189 AD3d 807 12na Dept. 2020). Defendants timely appeared in the action by opposing the Order to Show Cause, appearing at oral argument and conducting a hearing and are not in default. Jeffers v. Stein, 99 AD3d 970 12na Dept. 2012). Their failure to serve an answer caused no prejudice to Plaintiff, as the assets sought by Plaintiff have been preserved until a final determination is made as to ownership. ln addition, Defendants have set forth a potentially meritorious defense and reasonable excuse for the delay. Defendants met their burden by establishing there is support for their defenses Callahan Hydraulics v Mechanical Man Car Wash Mfo. Co., 43 AD2d 896, 897 (4th Dept. 1974). \A/here a moving party meets that burden, Courts have a liberal policy with respect to vacating defaults. Bilodeau-Redeye v Preferred Mutual, supra Crandall v Wriqht Wisner, 59 AD3d 1059 (4th Dept. 2009); Davidson v Straiqht Line Contractors, 75 AD3d 1143 (4th Dept. 2010). 3 3 of 5 4 of 6 FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024 Plaintiff's motion is therefore denied. The Court is issuing herewith a Scheduling Order directing Defendants to file and serve an answer by March 4,2024. The foregoing constitutes the Decision and Order of the Court. ENTER c Dated: February 13,2024 C Justice of the Supreme Court c = 4 4 of 5 5 of 6 FILED: LEWIS COUNTY CLERK 02/15/2024 02:41 PM INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/15/2024 INDEX NO. EFCA2023-000044 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 02/13/2024 Submissions: A!! documents filed under Motion number three (3) in New York State Court's Electronic Filings. 5 5 of 5 6 of 6