Supreme Court, Kings County

Decided on May 18, 2026

Index No. 537248/2025

Aaron D. Maslow, J.

[*1]

The following papers efiled on NYSCEF were used on these motions:

By defendant Dutta (movant): Doc Nos. 25-32.

By plaintiff (in opposition): Doc Nos. 33-35.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motion is determined as follows.

Question Presented

This case implicates an issue about pleading concerning which there is practically no post-CPLR-enactment case law. The question presented is whether a defendant is entitled to a default judgment against the plaintiff on the basis that the plaintiff failed to reply to the defendant's counterclaims which were not denominated as "counterclaims" in the answer.

Background

On October 22, 2025, plaintiff Harry Hutchison ("plaintiff Hutchison") commenced an action against defendants Projjal Dutta ("defendant Dutta") and Aicon Contemporary, seeking damages resulting from an alleged assault and battery by defendant Dutta on plaintiff Hutchison on April 11, 2025, on the second floor of 35 Great Jones Street, New York, New York, where both shared work space. The complaint alleged various causes of action against defendant Dutta, including those sounding in assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. A cause of action alleging vicarious liability on the part of defendant Aicon Contemporary, owned by defendant Dutta, was also alleged. (See NYSCEF Doc No. 29, complaint.)

In his answer, defendant Dutta responded to plaintiff Hutchison's numbered statements and alleged various affirmative defenses, including that any actions taken by the former were justified and privileged under the doctrines of self-defense and defense of property. Defendant Dutta's answer also alleged "factual claims" against plaintiff Hutchison: that plaintiff Hutchison intentionally assaulted and battered him and made false reports to the New York City Police Department, resulting in Dutta's arrest on April 14, 2025 and subsequent arraignment. Defendant Dutta stated that plaintiff Hutchison's actions caused him to sustain permanent emotional, physical, and economic injuries, and that he was thereby damaged. The answer then continued with "causes of action" on behalf of defendant Dutta against plaintiff Hutchison with the labels of assault, battery, intentional infliction of emotional distress, abuse of process, malicious prosecution, and false arrest. (See NYSCEF Doc No. 31, answer.)

On November 21, 2025, defendant Aicon Contemporary filed motion sequence one seeking dismissal of plaintiff's complaint pursuant to CPLR 3211 (a) (7). The Court granted the motion and dismissed the complaint as against Aicon Contemporary, finding that the fifth cause of action failed to elaborate how the conduct took place in the course and furtherance of the business of Aicon Contemporary in order to justify vicarious liability. The Kings County Clerk entered the Court's resulting order on January 13, 2026.

Defendant Dutta now moves for a default judgment against plaintiff Hutchison for failure to plead, answer, or move in respect to what he describes as his counterclaims in the answer. Defendant Dutta contends that service was properly effectuated by filing the verified answer and counterclaims on NYSCEF, and that plaintiff's time to respond expired on December 11, 2025, twenty days after effectuation of service. (See NYSCEF Doc No. 26, Rygus aff.)

Plaintiff Hutchison contends that what defendant Dutta calls counterclaims indeed are not — that the word counterclaim does not appear in defendant Dutta's answer. There were three distinct opportunities for defendant Dutta to have denominated any portions of the latter's pleading as including counterclaims: (1) when naming the document itself, (2) when including a header for the section in the answer purportedly containing the counterclaims, and (3) when providing a title and sub-title under which it was filed with NYSCEF. On NYSCEF, defendant Dutta's pleading was filed as an "Answer" instead of "Answer with Counter-Claim(s)," which is an option in the drop-down menu. The sub-title, "Defendant Projjal Dutta's Verified Answer" [*2]does not make mention of counterclaims either. Moreover, after asserting affirmative defenses and including a Wherefore clause, defendant Dutta added a section entitled "AND AS TO MR. DUTTA'S FACTUAL CLAIMS AGAINST MR. HUTCHINSON [sic]," failing to denominate these "factual claims" as "counterclaims" (NYSCEF Doc No. 10).

Defendant Dutta responded at oral argument that since affirmative claims against plaintiff Hutchison are set forth in the answer they indeed are counterclaims, regardless of the nomenclature.

Discussion

"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature (Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38; see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556), and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used (Bender v Jamaica Hosp., 40 NY2d 560; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Meltzer v Koenigsberg, 302 NY 523; Matter of De Peyster, 210 NY 216)" (Patrolmen's Benevolent Assn. of City of NY v City of New York, 41 NY2d 205, 208 [1976]).

Guided by principles of statutory construction, the Court examines CPLR 3011, which provides in pertinent part:

There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer.

In considering the meaning of the word "denominate," the Court turns to Black's Law Dictionary (12th ed 2024):

denominate vb. (16c) 1. To formally give a name or epithet to.

2. To officially set the value of (something) according to an established system or a type of money.

3. To show, point out, or indicate.

Similarly, the Court in Kessinger v Kessinger (935 SW2d 347, 349 [Mo Ct App 1996] noted:^FN1

A "denomination" is merely the act of naming. Black's Law Dictionary, 435 (6th ed., 1990). To "denominate" means to give a name to, or to denote or designate. The Random House Dictionary of the English Language, 532 (2d ed unabridged, 1987).

These definitions are consistent with the ordinary and commonly understood meaning of the term "denominated," defined in the Merriam-Webster dictionary as "to give name to" and "to express or designate in some denomination." Based on the use of "denominated" within CPLR 3011, there can be no doubt that the term is clear and unambiguous. Accordingly, the statutory language must be construed to require a reply only where a pleading expressly names a claim as a counterclaim.

In a discussion regarding replies to counterclaims, Professor Patrick M. Connors provides the following:

Note the words "denominated as such" following "counterclaim" in CPLR 3011. This should warn the defendant, D, to label as a counterclaim the cause of action D is pleading against P. If D fails to do so, P is apparently relieved of the obligation of serving a reply to it. P, on the other hand, would do well to take a cautious approach. If, while there is no counterclaim label, the answer appears to contain a counterclaim, P can reply to it and leave to D the assertion of any objections D has to such a procedure. If D moves to dismiss the reply on the ground that it is unauthorized because D did not counterclaim, P would thereby have extracted what amounts to a concession that D seeks no affirmative relief against P. (Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3011 1:9.)

Here, the circumstances are analogous to those described by Professor Connors. While the Court notes that a plaintiff may reply to an answer that appears to contain a counterclaim, plaintiff Hutchison did not owe any obligation to respond without such a denomination of what essentially were counterclaims. Thus, while defendant Dutta in effect argues that if "it looks like a duck and quacks like a duck then it is a duck," this Court disagrees. Based on a plain reading of CPLR 3011, if it looks like a duck and quacks like a duck but it is not properly denominated as such, then it is not a duck. The Court declines to treat the allegations seeking affirmative relief as requiring a reply, since the absence of a clear designation failed to provide adequate notice to plaintiff Hutchison.

It is noted as a matter of historical interest that it was stated: "It is the settled law in this state that for a defendant to preclude a plaintiff from contesting a counterclaim because of a failure to serve a reply, the counterclaim must be distinctly named as such in the answer. Acer v. Hotchkiss, 97 NY 395; Equitable Life Assurance Society v. Cuyler, 75 NY 511." (American Guild of Richmond, Va. v Damon, 186 NY 360, 364 [1906].) Of course, the CPLR was enacted in 1962 and took effect September 1, 1963, more than a half century after American Guild of Richmond, Va. was determined under a predecessor civil procedure statute.^FN2

Olsen & Chapman Constr. Co. v Village of Cazenovia (30 AD2d 738, 738 [3d Dept 1968]) contains a terse opinion, in pertinent part stating: "The answer of the appellants does not contain a designated counterclaim and thus, a reply was not required pursuant to CPLR 3011. It does not appear that the so-called reply would serve any legitimate function in the law suit and, accordingly, does not come within the last sentence of CPLR 3011." It is unclear whether in that case there indeed was a counterclaim not denominated as such or whether there was no counterclaim. In the case at bar, there do appear counterclaims but they are not denominated as such, thereby not triggering a required reply.

Finally, inasmuch as a default judgment would constitute a drastic and extreme remedy, there are other considerations also. "Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2d Dept 2005]; see Young Su Hwangbo v Nastro, 153 AD3d 963, 965 [2d Dept 2017]; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2d Dept 2013]). Defendant Dutta would not be prejudiced were plaintiff Hutchison permitted to interpose a reply to the counterclaims. The nature of the claims each has against the other are not such as to fade from their memories, and a resolution on the merits is favored. Plaintiff Hutchison's not interposing a reply was not willful.

Without formally denominating the counterclaims as such in his answer, defendant Dutta failed to provide proper notice to plaintiff Hutchison at least to the extent of compelling the latter to serve and file a reply. Therefore, granting defendant Dutta the relief he seeks — a default judgment against plaintiff Hutchison for not serving and filing a reply — would be improper.

Conclusion

It is hereby ORDERED that the motion by defendant Projjal Dutta seeking a default judgment against Plaintiff Harry Hutchison due to a failure to reply to counterclaims is hereby DENIED.