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March 8, 2000


The opinion of the court was delivered by: Spatt, District Judge.


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 Frederick Showers.

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 the Certificate.

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 Fed.R.Civ.P. 55(c). 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 ...

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