The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case involves allegations by the Plaintiff Gladys Bletter
("Bletter") that the Village of Westhampton Beach ("Village")
violated her federal civil rights and acted negligently in
improperly issuing a certificate of occupancy to the prior owners
of Bletter's house. Presently before the Court are the Village's
motion for summary judgment and Bletter's cross-motion to
preclude the Village from raising defenses based on the Village's
failure to file a timely answer.
On November 28, 1994, Bletter purchased a house at 176 Beach
Road, Westhampton Beach, N.Y. from Allegra Capra and Thomas and
Irene Mahoney ("the sellers") for approximately $800,000.
Pursuant to the terms of the sale, the sellers produced a
Certificate of Occupancy for the premises issued by the Village
on February 26, 1992, signed by Village Building Inspector
According to Bletter's complaint, Showers had issued the permit
without first inspecting the house to determine if it complied
with the Suffolk County Department of Health Services
regulations. Bletter contends that the sellers' attorney was
politically well-connected in the Village and that the Village
knowingly approved otherwise unacceptable projects for the
attorney's clients due to his political influence. Further,
Bletter alleges that Showers was aware in 1992 that the sellers
were seeking a Certificate of Occupancy in order to sell the
property, and that Showers knew a potential buyer would rely on
In October 1996, Bletter was informed by the Suffolk County
Department of Health Services that final approval for the sewage
disposal and water supply of 176 Beach Road was never received.
Inspection revealed that the paved driveway covered the septic
system, apparently in violation of Suffolk County Department of
Health Services regulations. Bletter contends that this defect in
the property was well known to the Village and had previously
been the subject of civil proceedings brought by the Village to
stop work on the property. Bletter was eventually forced to fence
off the area above the underground sanitary system, thus losing
50% of the parking space available in her driveway.
On March 28, 1998, Bletter filed an action against the Village
in Supreme Court, Suffolk County, alleging four causes of action.
The first cause of action is somewhat unclear, alleging either
fraud, in that the Village "fraudulently, with non feasance and
intentionally" issued a Certificate of Occupancy "in violation of
the rights of the plaintiff," or negligence, in that the Village
"had a special relationship to the plaintiff . . . because of its
actual or constructive notice" of the health violation
"warranting the imposition of a duty of reasonable care." The
second cause of action is asserted under "42 U.S.C.A. § 1988" for
violation of Bletter's civil rights, although the particular
right alleged to be violated is not specified. The third cause of
action appears to sound in breach of contract, in that "the
defendant has lost that which she bargained for in the purchase
of the subject premises." The fourth cause of action is also
unclear, alleging that "the aforesaid acts were done wilfully,
wantonly, or maliciously and are a perverse and obstinate failure
to discharge a duty." The Village removed the case to this Court
on July 9, 1998.
The Village now moves for summary judgment on the grounds that
Bletter's complaint and notice of claim are untimely; that the
Village is immune from suit; that Bletter has no property
interest to support a Section 1983 claim; and that Bletter has
failed to allege a Village policy or custom of depriving persons
of their civil rights. Bletter cross-moves to preclude the
Village from offering any defenses on the grounds that the
Village did not timely file an answer.
A. As to Bletter's cross-motion
In cases removed to federal court prior to the defendant
answering, Fed.R.Civ.P. 81(c) provides that the answer must be
served within 5 days of the notice of removal. The Village's
answer was served some four months after it removed the case.
Under the provisions of Rule 81(c), the Village is in default.
However, Bletter never sought nor obtained a default judgment.
Therefore, this Court treats the Village's opposition to
Bletter's cross-motion as a motion to vacate the default under
See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)
(opposition to motion for default can be treated as Rule 55(c)
motion where a default judgment has not already been entered). In
deciding a motion to vacate a default under that rule, the Court
must examine three factors: (i) whether the default was willful,
(ii) whether the defendant demonstrates the existence of a
meritorious defense, and (iii) whether, and to what extent,
vacating the default will cause prejudice to the nondefaulting
party. Securities and Exchange Commission v. McNulty,
137 F.3d 732, 738 (2d Cir. 1998); Gucci America, Inc., Guess?, Inc. v.
Gold Center Jewelry, 158 F.3d 631, 634 (2d Cir. 1998);
Richardson v. Nassau County, 184 F.R.D. 497 (E.D.N.Y. 1999).
"Willfulness," in the context of a default, refers to conduct
that is more than merely negligent or careless. Id., citing
American Alliance Insurance Co. v. Eagle Insurance Co.,
92 F.3d 57, 62 (2d Cir. 1996) (default resulting from filing error in
attorney's office was held not wilful); Holford USA Ltd. v.
Harvey, 169 F.R.D. 41, 44 (S.D.N.Y. 1996) (attorney oversight
was held not wilful where attorney participated actively in
litigation before and after default). In determining whether the
party in default has a meritorious defense on the merits, the
Court need only find that the proposed defense, "if proven at
trial, would constitute a complete defense" McNulty, 137 F.3d
at 740; Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 98 (2d Cir.
1993). Finally, in deciding whether to vacate, the Court is
mindful of the longstanding preference in the Federal Courts that
litigation disputes be resolved on the merits, which requires
that any doubt as to whether a default should be vacated will be
"resolved in favor of trial on the merits." Id.
The Village contends that its default resulted from the fact
that its counsel changed firms shortly after the petition for
removal was filed. According to the Village's reply brief, the
attorneys representing the Village left their firm the day after
the notice of removal was filed. The record indicates that there
were some needless delays — nearly a month passed before a
stipulation of substitution of counsel was finally executed by
the present and former firms representing the Village, and more
than a month went by before that signed stipulation was filed
with the Court — for which the Village offers no excuse. On the
other hand, the record also indicates that the Village has
actively participated in this litigation from the outset, filing
a notice of appearance and demand for complaint before removal,
participating in discovery and making the instant motion after
removal. Accord Holford, 169 F.R.D. at 44. Based on all of ...