S.M.A. v. City of New York et al
| S.M.A. |
| City of New York Education Department and City of New York |
| 1:2021cv01254 |
| March 9, 2021 |
| US District Court for the Eastern District of New York |
| Sanket J Bulsara |
| Eric N Vitaliano |
| Civil Rights: Education |
| 20 U.S.C. ยง 1401 Education: Handicapped Child Act |
| None |
Docket Report
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ORDER: The Motion #8 is granted. Defendant City of New York ("the City") has established that the factors set out in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), namely "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented," weigh in favor of granting the motion. First, the City has established that the default was not willful, but the result of an inadvertent mistake by counsel. See, e.g., Am. Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996) (ruling that "a filing mistake" by "counsel's clerk" was "grossly negligent" but "was not willful, deliberate, or evidence of bad faith"). Second, Plaintiff has consented to set aside the default. And third, the City is prepared to promptly file an answer and proceed with litigation, which indicates that a meritorious defense may be present; the Court's preference is to resolve cases on the merits, not on default. The City is directed to file its answer by 6/1/2021. The motion #7 is denied as moot in light of the subsequent motion. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/28/2021. (Farrell, Gillian)
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| Filing 10 RESPONSE to Motion re #8 MOTION for Leave to File Document Declaration of Arthur J Golder Consenting to the Late Filing filed by S.M.A.. (Golder, Arthur) |
| Filing 9 AFFIDAVIT/DECLARATION in Support re #8 MOTION for Leave to File Document filed by City of New York, City of New York Education Department. (Dantowitz, Jeffrey) |
| Filing 8 MOTION for Leave to File Document by City of New York, City of New York Education Department. (Dantowitz, Jeffrey) |
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ORDER: On 4/5/2021, Defendants City of New York and City of New York Education Department moved to extend the time to answer, move, or otherwise respond to the Complaint. Defendants' answers were due on 3/31/2021. Because they are seeking to extend the time to answer after the time to do so has passed, Defendants must file a motion by 4/13/2021 that explains why, under the standards set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), a belated answer is permissible, and why a default should not be entered. Liang v. Home Reno Concepts, LLC, 803 F. App'x 444, 446 n.2 (2d Cir. 2020). So Ordered by Magistrate Judge Sanket J. Bulsara on 4/6/2021. (Farrell, Gillian)
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| Filing 7 First MOTION for Extension of Time to File Answer by City of New York, City of New York Education Department. (Richter, Marilyn) |
| Filing 6 SUMMONS Returned Executed by S.M.A.. City of New York Education Department served on 3/10/2021, answer due 3/31/2021. (Golder, Arthur) |
| Filing 5 SUMMONS Returned Executed by S.M.A.. City of New York served on 3/10/2021, answer due 3/31/2021. (Golder, Arthur) |
| Filing 4 Summons Issued as to City of New York, City of New York Education Department. (Attachments: #1 Summons) (Davis, Kimberly) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) |
| Filing 2 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) |
| Filing 1 COMPLAINT S.M.A., a minor, by his parent and natural mother C.P., Plaintiffs, against All Defendants filing fee $ 402, receipt number ANYEDC-14261172 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by S.M.A.. (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons, #3 Proposed Summons) (Golder, Arthur) |
| Case Assigned to Judge Eric N. Vitaliano and Magistrate Judge Sanket J. Bulsara. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) |
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