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Bobetsky v Luca 2011 NY Slip Op 32429(U) September 2, 2011 Supreme Court, Nassau County Docket Number: 23419/10 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU
JOHN BOBETSKY , INFANT UNDER THE AGE OF 13 BY HIS MOTHER AND NATURAL GUARDIAN GINA BOBETSKY

MICHELE M. WOODARD
Plaintiff
-against -

TRIAL/IAS Par Index No. : 23419/10 Motion Seq. No. : 01 & 02

ROCCO LUCA , INDIVIDUALLY , ROCCO LUCA D/B/A ROCCO DESIGN & STYLING BARBER SHOP AND JOHN DOE

DECISION AND ORDER

Defendants. -------------------------------------------------------------------------)C

Papers Read on this Motion: Plaintiffs Notice of Motion
Defendants Rocco Luca D/B/A Rocco Design Notice of Cross- Motion Plaintiff s Affirmation in Opposition Plaintiffs Supplemental Affrmation in Support Defendant Rocco Luca s Reply Affirmation

)C)C

)C)C )C)C

In motion sequence number one , the plaintiffs move for an order granting a judgment by default
against defendants, Rocco Luca , individually, Rocco Luca d//a
Rocco Design

& Styling Barber Shop

and John Doe , as well as for an order directing an inquest as to damages.

In motion sequence number two , defendant , Rocco Luca, individually cross-moves for an order
vacating his default in appearance and for an order pursuant to CPLR

3012(d), permitting him to serve

a late answer.

On or about May 27 , 2010 , the infant plaintiff allegedly sustained personal injuries while

receiving a haircut from defendant , John Doe , at the Rocco Design & Styling Barber Shop

(see

Odierno

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Affirmation in Support at E)Ch. A at

, 11

, 14 ,

15

, 18

, 36 37). Said establishment

which is located at 2550 Hempstead Turnpike , East Meadow , New York, is allegedly owned by
defendant , Rocco Luca
(id.

9).

In support of the application seeking a judgment by default , counsel for the plaintiffs has

submitted the following: an affidavit from the infant plaintiffs mother , which attests to the facts

underlying the within action; the affdavits of the process server, which indicate that on Februar 3
2011 , process was effected upon defendants , Rocco Luca and Rocco Luca d//a Rocco Design

Styling Barber Shop; an affidavit indicating that on Februar
in accordance with the provisions of CPLR

3 , 2011 , defendant , John Doe , was served

308(2), and; an affirmation from plaintiffs ' counsel in

which it is averred that the time for the foregoing defendants to timely interpose an answer has e)Cpired
(id. at 6; see also

E)Chs. A , B , C;

see also

Odiemo Supplemental Affirmation at E)Ch.

A).

In addition to the foregoing, by letters dated April 14 and April 28 , 2011 , counsel for the

plaintiffs informed both Mr. Luca, as well as his counsel, that an answer to the sumons and complaint
was outstanding and in the event an answer was not forthcoming, the plaintiffs would be relegated to
moving for a judgment by default (see Odiemo Affirmation in Support at 5; see also

E)Ch. C).

The plaintiffs ' instant application is opposed by defendant , Rocco Luca , who cross-moves for
an order vacating his default and for an order granting leave to fie a

late answer. In support of the

cross-application , counsel for Mr. Luca contends that "the time for defendant to file an answer only
e)Cpired less than thirt (30) days ago

" and as such the plaintiffs will not be prejudiced by granting the
10). Counsel fuher contends that he has only

relief herein requested

(see

Giordano Affirmation at

I Defendant, Rocco Design & Styling Barber Shop, neither opposes the plaintiffs ' application nor crossmoves for any affnnative relief (see Giordano Affinnation at

l).

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recently leared the premises upon which Mr. Luca s barber shop is located is owned by an entity

known as BLM Consulting, LLC (hereinafter BLM) and that the incident as described in the plaintiffs
complaint would necessarily involve impleading said entity (id.

at ~~8

9;

see also

Giordano Reply

Affirmation at ~6). Paricularly counsel asserts that " (t)he incident of injur

referred

to in the complaint

was not caused by the defendant nor any employee , independent contractor or other person over whom
defendant e)Chibited any supervision or control" and accordingly the within action " clearly falls under a
certain insurance policy where BLM * * * is the insured" (see Giordano Reply Affirmation at ~6;

see

also

Luca Affdavit at ~5 7).
In Reply, counsel for the plaintiffs asserts that the defendant has failed to set forth why he has

not timely fied an answer notwithstanding having been personally served therewith on

Februar 7

2011 , and despite the two aforementioned letters sent to Mr. Luca and his counsel informing them of
the default (see

Odiemo Reply Affirmation at ~~2 , 3 , 4 , 10). Specifically, counsel contends that the
by the defendant -

allegation set fort

that BLM may be a legally responsible par for the infant
to why Mr. Luca himself did not

plaintiffs injuries - does
interpose a timely answer

not constitute a reasonable e)Ccuse as

(id.

at ~1 0).

In addition to the foregoing, counsel for the plaintiffs posits in Reply that the defendant has
failed to put forth a meritorious defense to the action (id.

at ~~2 , 3 ,

11). To this point , counsel contends

that the within action is not predicated upon premise liability and as such BLM is an unecessar party
2 The Cour notes that counsel for Mr. Luca states that while BLM' s insurance company initially disclaimed any liabilty for the subject accident, by way of a letter anexed to the Reply papers , BLM' s insurance carier has changed it' s position as to potential liabilty and coverage since receiving the complaint from it' s insured" (see Giordano Reply Affnnation at ~6). However , no such letter is annexed to counsel' s Reply Affnnation.
3 The Court notes that while plaintiffs ' counsel states that Mr. Luca was personally served on February 7
2011 , the Affdavit of Service indicates that process was served on February 3 , Support at Exh. C).
2011 (see

Odiemo Affnnation in

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and any attempts by defense counsel to implead said entity is insufficient to demonstrate a meritorious
defense to the underlying complaint (id.

at ~3).

On an application for a judgment by default , CPLR

3215 requires that the movant provide the

following: proof of service of the summons and complaint; evidence , via an affidavit by the par,
which states the facts which underlie the complaint or

a complaint verified by the par, and; an

affdavit as to the defendants ' default in the action. In the instant matter , having carefully reviewed the
evidence submitted by the plaintiffs as is outlined herein above , this Cour finds that the plaintiffs have
provided the requisite proof entitling them to a judgment by default (id.).

Moreover , in cross-moving

for an e)Ctension of time in

which to serve an answer , this Cour finds that the defendant has failed

make the requisite showing.
Of paricular relevance to the defendant' s
3012(d), " a

application and within the puriew of CPLR

defendant who has failed to timely appear in an action may move to compel the plaintiffs

acceptance of an untimely answer ' upon such terms as may be just and upon a showing of reasonable
e)Ccuse for (the)
delay or default' " (Stephan B. Gleich Associates

Gritsipis 927 NYS2d 349 , 2011

NY Slip Op 05483 (2d Dept 2011) quoting CPLR 3012 (d);

see also New York and Presbyterian

Hospital

Auto One Insurance Company,

28 AD3d 441 (2d Dept 2006)). " Whether there is a
discretionar, sui generis

reasonable e)Ccuse for a default is a

determination to be made by the court
been prejudice to the

based upon all relevant factors including the e)Ctent ofthe
opposing par,
whether

delay, whether there has

there has been willfulness , and the strong public policy in favor of resolving

cases on the merits

(Harcztark

Drive Variety,

Inc.

21 AD3d 876 (2d Dept 2005) at 876- 877).

Here , the Cour initially notes that while counsel for the defendant posits "the time for defendant

to file an answer only e)Cpired

less than thirt (30) days ago" ,

said assertion is belied by the record. As

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noted above , service was effected upon Mr. Luca, as well as upon Rocco Design & Styling Barber Shop
on Februar 3 ,

2011 , yet the defendant's within application was not even noticed until May 25,
arguendo

2011.

Additionally, even assuming

that BLM is in fact a responsible par, this does not , in any

respect , e)Cplain why Mr. Luca , in his individual capacity, did not interpose an answer to the plaintiffs

complaint after having been personally served on Februar
default by way of the two aforementioned letters

3,

2011 and having been notified of his
Associates

(Stephan B. Gleich

Gritsipis , 927

NYS2d 349 , 2011 NY Slip Op 05483 (2d Dept 2011),
which seeks a judgment by default is hereby GRANTED

supra).

Accordingly, the plaintiffs ' application
as to defendants, Rocco Luca and Rocco

Design & Styling Barber Shop (Sequence #001) and in accordance therewith the cross-motion
interposed by defendant , Rocco Luca , is hereby
DENIED

(Sequence #002). However , that branch of

the plaintiffs ' application , which seeks a judgment by default against defendant, John Doe, is hereby
DENIED

for the reasons set forth hereinafter.

CPLR ~1024 provides the following, in relevant par: (a) par who is ignorant , in whole or in
par, of the name or identity of a person who may properly be made a pary,
may proceed

against such

person as an unown

par by designating so much of his name and identity as is known. " In order to
ruing of the
Luckern

utilize the procedural mechanism as ariculated in CPLR ~ 1024 , the plaintiff must establish that he or
she undertook " genuine efforts to ascertain the defendants ' identities prior to the
of Limitations
(Porter

Statute

Kingsbrook OBIGYN Assocs.

209 AD2d 497 (2d Dept 1994);

Lyonsdale Energy Ltd. Partnership,

229 AD2d 249 (4 Dept 1997)). Additionally, " (w)hile CPLR

~ 1

024 allows a par who is ignorant of the name or identity of one who may properly be made a par
' form

to proceed by designating so much of his identity as is known , a summons served in a ' John Doe

is jurisdictionally sufficient only if the actual defendants are adequately described and would have

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known , from the description in the complaint , that they were the intended defendants
Trading, Inc.
78 AD3d 1163 (2d Dept 2010) at 1165 quoting Lebowitz

(Thas

Dayrich

Fieldston Travel Bureau, Inc.

181 AD2d 481 (1

st Dept 1992) at 481).

In the instant matter , the Cour notes that the plaintiffs herein have not set forth what efforts , if

any, they have employed to determine the true identity of " John Doe
Assocs.
209 AD2d 497 (2d Dept 1994), supra).

(Porter

Kingsbrook OBIGYN

Furher, a review ofthe complaint reveals that

defendant , John Doe , is described therein as a " resident of New York " as well as " an agent , servant
employee , assign and/or ' a renter of a haircutterlbarber chair
at Rocco Design

& Styling Barber

Shop. 4 However , other than implying that " John Doe " is a male who worked for Mr. Luca, the plaintiffs

have not set forth any other relevant information such as John Doe s race , height , weight , or age so as to
apprise this individual that he was indeed the intended defendant (Thas

Dayrich Trading, Inc. , 78

AD3d 1163 (2d Dept 2010),

supra).

Thus , the Cour finds that the plaintiffs ' generic description with

respect to John Doe renders the summons jurisdictionally insufficient and accordingly that branch of the
plaintiffs ' application , which seeks an order granting a judgment by default against defendant , John
Doe , is hereby

DENIED.

In accordance with the foregoing, it is hereby

ORDERED that this matter with respect to the default judgment as granted herein in favor of
the plaintiffs and against defendants , Rocco Luca and Rocco Luca d//a
Rocco Design

& Styling Barber

Shop, is referred to the Calendar Control Par (CCP) for an Inquest as to damages to be held on October
, 2011. It is fuher

4 see Verified Complaint at

'i20

32.

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ORDERED , that the plaintiffs shall fie

and serve a note of issue ,

together with a copy of this

Order on all paries and shall serve copies of same , together with receipt of payment , upon the Calendar
Clerk of the Cour , within twenty (20) days ofthe date of this Order. It is fuher

ORDERED , that the directive with respect to a hearing is subject to the right of the Justice
presiding in CCP II to refer the matter to a Justice , Judicial Hearing Officer , or a Cour
Attomey/Referee , as he or she deems appropriate.
This constitutes the Decision and Order of the Court.

All applications not specifically addressed are Denied.

DATED:

September 2 ,

2011
11501

Mineola, N. Y.

ENTER:

ON. MICHELE M. WOODARD

F:Bobetsky v Luca, et al MBS, wpd

ENTERED
SEP 1 4 2011
NASSAU COUNTY COUNTY CLERK' S OFFICE



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