State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 12, 2017 523079 

________________________________

JESSICA SNYDER,

Respondent,

v

BALJINDER SINGH et al., MEMORANDUM AND ORDER

Appellants,

et al., 

Defendants.

________________________________

Calendar Date: November 17, 2016

Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ., 

__________

Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Kristin M.

Benson of counsel), for appellants.

Edward E. Kopko, Lawyer PC, Ithaca (Edward E. Kopko of

counsel), for respondent.

__________

Mulvey, J.

Appeal from an order of the Supreme Court (Rumsey, J.),

entered March 22, 2016 in Tompkins County, which, among other

things, granted plaintiff's motion for a default judgment.

In September 2014, plaintiff commenced this action for

dental malpractice by filing a summons with notice, alleging that

defendant Baljinder Singh, the sole owner of defendants Baljinder

Singh, D.D.S., P.C. and Cortland Dental (hereinafter collectively

referred to as defendants), unnecessarily extracted her teeth in

March 2012. On December 19, 2014, plaintiff effected personal

service of the summons with notice upon defendants by substituted

service upon defendants' office manager. On December 24, 2014,
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plaintiff also mailed a copy of the summons with notice to

defendants' office. On January 29, 2016, plaintiff moved for a

default judgment after receiving no notice of appearance from

defendants. On February 24, 2016, defendants cross-moved for

leave to file a late answer and compel plaintiff to accept

service pursuant to CPLR 3012 (d). Supreme Court thereafter

granted plaintiff's motion and denied defendants' cross motion. 

Defendants appeal.

Defendants argue that Supreme Court erred in granting

plaintiff's motion inasmuch as they demonstrated a reasonable

excuse for their default, contending that, upon receipt of the

summons with notice, their office manager retrieved a chart for a

"Jessica Snyder" and noted that defendants had not treated her

since 2002. The office manager discussed this discovery with

Singh and then telephoned plaintiff's counsel, reporting that

more than 10 years had elapsed since defendants' treatment of

plaintiff. Defendants took no further action until receipt of a

courtesy copy of plaintiff's motion for a default judgment. 

Singh eventually learned that he had two patients by the name of

Jessica Snyder and that the office manager had retrieved the

chart for the wrong one. Defendants contend that this mistake is

a clerical error constituting a reasonable excuse for the

default. 

"Supreme Court possesses the discretion to permit late

service of an answer upon a showing of a reasonable excuse for

the delay and a meritorious defense to the [action]" (Puchner v

Nastke, 91 AD3d 1261, 1261-1262 [2012] [citations omitted]). 

Here, defendants willfully chose to take no action after

contacting plaintiff's attorney. Notably, neither Singh nor the

office manager contend that they relied upon any instruction from

plaintiff's counsel (compare Matter of Toyota Motor Credit Corp.

v Impressive Auto Ctr., Inc., 80 AD3d 861, 864 [2011]), and

defendants do not cite any basis for a "reasonable belief that

the action was informally resolved" (Doane v Kiwanis Club of

Rotterdam, N.Y., Inc., 128 AD3d 1309, 1311 [2015]). Singh

unilaterally determined, erroneously, that the action was invalid

given the passage of time, and defendants consciously chose not

to contest liability or defend the action. A defendant's

mistaken belief that it has no liability "does not constitute a
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reasonable excuse for [its] default" (Lounsbury v Kiehl, 255 AD2d

774, 775-776 [1998]). Under these circumstances, Supreme Court

did not abuse its discretion and it properly denied defendants'

cross motion. Given this finding, we need not address

defendants' contention that defendants have a meritorious

defense.

Defendants also argue that plaintiff's motion for a default

judgment was untimely. As this contention was not raised before

Supreme Court, it is unpreserved for appellate review (see Stein

v Kendal at Ithaca, 129 AD3d 1366, 1367 [2015]; Agility Funding,

LLC v Wholey, 119 AD3d 1168, 1169 [2014]). Were this issue

properly before us, however, we would reject it. The record

confirms that plaintiff's motion was filed within one year of

defendants' default. Since defendants were served by "delivery

and mail" under CPLR 308 (2), and proof of mailing was filed with

the County Clerk on December 29, 2014, service was complete 10

days after filing on January 8, 2015 pursuant to CPLR 3012 (c). 

Thirty days for defendants' appearance, pursuant to CPLR 320 (a),

therefore expired on February 8, 2015, rendering plaintiff's

motion filed January 29, 2016 timely.

Peters, P.J., Garry, Devine and Aarons, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court