Plaintiff has moved for an order granting default judgment pursuant to CPLR '3215 against defendant Jay Street Pub, Inc. ("Defendant") based upon claims of negligence, dram shop liability, and negligent hiring and supervision arising from an altercation between Plaintiff and the individual defendants that took place at and near the pub. Plaintiff has supplied an affirmation from his counsel with annexed exhibits, including copies of the Summons and Complaint filed in this action, affidavit of service, and disclaimer letter from Defendant's insurer. Counsel affirms Defendant's default in appearing or pleading. Plaintiff has also supplied his own affidavit, which outlines the factual underpinnings of Plaintiff's claims. Plaintiff asserts that as two of the defendants (who were intoxicated) were being ejected from the pub after the altercation began, they stated that they would attack Plaintiff as soon as he left the pub. According to Plaintiff, despite knowing this threat and over Plaintiff's objection, Defendant's bouncer forced Plaintiff to leave the pub, whereupon he was indeed attacked and injured.

Defendant has opposed Plaintiff's motion and has cross-moved for leave to file and serve an Answer. Defendant's counsel submits an affirmation in which he asserts uncertainty surrounding Defendant's insurance coverage and a telephone conversation with Plaintiff's counsel as reasonable excuses for Defendant's delay in serving its Answer. Annexed to this affirmation is a copy of the proposed Answer. Defendant also submits an Affidavit of Merit from its president, in which he asserts that none of the individuals involved appeared intoxicated. He states that "within 10 seconds" of the altercation breaking out, all the participants were instructed to leave the pub and did so without further incident.

Leaving aside the question of the sufficiency of Plaintiff's proof, a court can grant an extension of time to serve an answer upon such terms as may be just and proper if there is a reasonable excuse for the delay or default in answering (CPLR 3012[d]). Defendant's argument, [*2]however, is not strong. This action was commenced on August 26, 2021, and Defendant was served via the Secretary of State on December 2, 2021. This would have made Defendant's Answer due on or before January 3, 2022 (CPLR 3012[c]). The question of insurance coverage appears to have been answered when Defendant's insurer issued a letter disclaiming coverage on March 10, 2022. While Plaintiff's counsel acknowledges a telephone conversation with defense counsel, he disputes as illogical defense counsel's claim that he said he would not pursue a claim against Defendant in the absence of coverage. Neither attorney places a date on the conversation.

By themselves, the insurance coverage question and the telephone call are not compelling reasons to grant an extension of time to answer. Moreover, defense does not assert that any effort to extend the time to answer has been made before now, either by direct request of Plaintiff's counsel, by motion to compel acceptance of an untimely answer or by another motion that would extend the time to answer, such as a motion to dismiss (CPLR 3211[f]). Waiting until a motion for default judgment has been filed is generally frowned upon (see e.g. 333 Cherry, LLC v. Northern Resorts, Inc., 66 AD3d 1176 [3d Dept 2009]).

At the same time, the record presents mitigating factors. Plaintiff has encountered difficulties in serving process on all the defendants. Plaintiff has received three extensions of time from the Court to effect service and is still attempting to serve defendant Campbell. Procedurally, then, this case is at a very early stage despite the passage of time. The facts are also highly contested. Beyond the differing versions of events asserted on this motion, the Court takes judicial notice of the Answer previously filed by defendant Birch, in which he asserts that Plaintiff was the aggressor and includes a counterclaim against Plaintiff for assault, as well as a cross-claim against Defendant for negligence. Given that cross-claim, Defendant will remain active in this case whether or not Plaintiff's motion is granted (CPLR §3011).

Were the Court to grant Plaintiff's motion for default judgment against Defendant, liability would be established but the measure of damages would require an allocation of comparative fault by the factfinder. Given the record here, the actions of all parties will require examination to assess fault (see Hon. Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3215:18). The Court's view is that the measure of Plaintiff's damages would be best established at trial, where full litigation of the matter could be had, and an apportionment of fault made.

The presence or absence of prejudice is another factor to be considered when deciding a motion for extension of time to plead (see e.g. Strumpf v. Massachusetts Mutual Life Ins. Co., 125 AD3d 1239 [3d Dept 2015]). Given the procedural posture of this case and the need to assess the fault of multiple actors, granting Defendant's motion will not truly prejudice Plaintiff, who would be required to litigate Defendant's conduct in any event. By the same token, granting Defendant's motion will likely serve the purpose of creating the most complete record possible for an assessment of fault.

Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Plaintiff seeking default judgment against defendant Jay Street Pub, Inc. is denied; and it is further

ORDERED, that the motion by defendant Jay Street Pub, Inc. seeking an extension of time to file and serve an Answer to the Complaint is granted and Jay Street Pub, Inc. shall file and serve the Answer annexed to its motion papers within thirty (30) days of the date of this Decision and Order.

Notice of Motion; Affirmation of Timothy S. Brennan, Esq., with annexed exhibits, including the Affidavit of Leland Savage; Notice of Cross-Motion; Affirmation of John A. Della Ratta, Esq.; Affidavit of Mitchell L. Ramsey, with annexed exhibit; Reply Affirmation of Timothy S. Brennan.