                           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,
                              -2-                523079

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
                              -3-                  523079

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
