Watt v. New York City Transit Authority ( 1983 )

In a negligence action to recover damages for personal injuries, etc., the defendant City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated May 14,1980, as, upon reargument of an order dated November 16, 1979, granting plaintiffs’ motion to compel the city to accept and answer the complaint, adhered to its original determination and denied the city’s application to sever it from the action and dismiss the complaint against it. Order dated May 14, 1980 reversed insofar as appealed from, on the law, with costs. Order dated November 16, 1979 vacated, and application to sever the action as to the defendant city and to dismiss the complaint against it granted. Plaintiff Ruth B. Watt alleged that she was injured when she fell on a defective sidewalk grating on June 1, 1974. Plaintiffs served a notice of claim upon the city on August 28, 1974 and upon the New York City Transit Authority on August 30,1974. On July 17, 1975, plaintiffs served a summons, without a complaint, upon the city. On July 18, 1975, the city served a notice of appearance and demand for the complaint upon plaintiffs. On July 29,1975, plaintiffs served a summons, again without a complaint, upon the transit authority. On July 31,1975, the transit authority demanded a complaint from plaintiffs. Plaintiffs assert that a complaint was served by mail upon the city on August 28,1975. In support of this claim, an affidavit of service signed by an employee of the attorney for the plaintiffs stated that she had mailed the complaint to the attorneys for both defendants, the city and the transit authority, on August 28, 1975. In a subsequent affidavit dated February 19, 1980, however, this same individual acknowledged that, contrary to her original affidavit of service, she had not mailed the complaint to the transit authority. Nevertheless, she maintained that she did personally mail the complaint to the New York City Corporation Counsel. On December 21, 1978, plaintiffs’ attorney sent a letter to the city requesting the forwarding of an answer to the complaint. In response to this letter, the city acknowledged the service of only a summons, and informed plaintiffs’ counsel that a review of its records failed to disclose the receipt or existence of any complaint in the action. On June 7, 1979, plaintiffs’ attorney sent the city a copy of the original complaint, along with a copy of the original affidavit of service, and again requested an answer. Shortly thereafter, the city sent a letter to plaintiffs in response to the above communication, reiterating that its records failed to disclose the existence of any prior complaint and rejecting as untimely the copy of the complaint mailed by plaintiffs on June 7, 1979. By notice of motion returnable August 15, 1979, plaintiffs moved for an order compelling the city to accept and answer the complaint. In an order dated November 16, 1979, Justice Shaw at Special Term granted this motion. The city made a motion for renewal and reargument returnable April 15, 1980, which included an application for an order severing it from the action and dismissing the complaint as to it. In the order appealed from, dated May 14, 1980, Special Term granted the city’s motion for reargument and thereupon adhered to the original determination. We conclude, based upon the specific facts and circumstances present in the instant case, that Special Term’s determination to require the city to accept and answer the complaint was erroneous and that the complaint must be dismissed as against the city. The major issue involved in the instant appeal is whether plaintiffs properly mailed the original complaint to the city. Service by mail is deemed to be complete, pursuant to CPLR 2103 (subd [b], par 2), upon the deposit of a properly stamped and addressed letter in a depository under the exclusive care and custody of the United States Post Office. Moreover, this service is complete regardless of delivery to or receipt by the other party (Grinan v Santaella, 89 AD2d 866; A & B Serv. Sta. v State of New York, 50 AD2d 973, 974, mot for lv to app den 39 NY2d 709). On the record before us, however, there is insufficient evidence to establish that plaintiffs mailed the original complaint to the city in August, 1975 (Grinan v Santaella, supra). A duly executed and notarized affidavit of service by mail is usually sufficient to create a presumption that a document was mailed and delivered (see De Forte v Doctors Hosp., 66 AD2d 792). In the instant case, however, the original affidavit of service was later discredited in an affidavit by the individual who had prepared it and who had been responsible for mailing the complaint. Thus, plaintiffs negated rather than established the existence of a regular office practice which would naturally have resulted in the mailing of the complaint (see Gardam & Son v Batterson, 198 NY 175, 178-179; Coonradt v Averill Park Cent. School Dist., 73 AD2d 747; Capra v Lumbermens Mut. Cas. Co., 43 AD2d 986; cf. Nassau Ins. Co. v Murray, 46 NY2d 828). Even if the original affidavit of service was deemed sufficient to establish a presumption of the mailing and delivery of the complaint, that presumption was rebutted by the later admission of the individual who prepared the affidavit which discredited the assertions contained in it, thus showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the complaint was mailed (see Nassau Ins. Co. v Murray, supra, p 830). A hearing on the issue of whether the complaint was mailed would be of no value in the instant case, as the only witness with personal knowledge of the mailing of the complaint, is the same individual who later contradicted the original affidavit of service by mail which she prepared (see Grinan v Santaella, supra; cf. De Forte v Doctors Hosp., supra; Capra v Lumbermens Mut. Cas. Co., supra). Moreover, plaintiffs’ inordinate delay of more than three years after the complaint was allegedly mailed to the city, in contacting the city to request the answer, and in forwarding a copy of the original complaint, signifies neglect in prosecuting the action. Plaintiffs’ only justification for this delay, the misplacing of the file, falls into the disfavored category of “law office failure” and does not provide an adequate basis for the exercise of our discretion relieving them of their default (cf. L 1983, ch 318). Plaintiffs’ failure “to take proceedings for the entry of judgment within one year after the [alleged] default” serves as a distinct ground for dismissing the action against the city (CPLR 3215, subd [c]; Baldwin v St. Clare’s Hosp., 63 AD2d 761; Bubin v County of Nassau, 31 AD2d 763; Herzbrun v Levine, 23 AD2d 744). Damiani, J. P., Thompson and Boyers, JJ., concur.