Opinion
No. 2023-51054 Index No. 517758/2016
10-06-2023
Allan Damsky, Plaintiff, v. Seddrick Williams, Defendant.
David A. Zelman Esq., New York City (David A. Zelman of counsel), for Plaintiff. Michael E. Hatchett, Esq., New York City (Michael E. Hatchett of counsel), for Defendant.
Unpublished Opinion
David A. Zelman Esq., New York City (David A. Zelman of counsel), for Plaintiff.
Michael E. Hatchett, Esq., New York City (Michael E. Hatchett of counsel), for Defendant.
AARON D. MASLOW, Justice of the Supreme Court
The following numbered papers were read on this motion:
Submitted by Defendant in Support of Motion:
NYSCEF Doc No. 75: Notice of Motion
NYSCEF Doc No. 76: Affidavit of Seddrick Williams
NYSCEF Doc No. 77: Affirmation of Michael Hatchett, Esq.
NYSCEF Doc No. 78: Exhibit A - Decision & Order Vacating Default Judgment
Submitted by Plaintiff in Opposition to Motion:
NYSCEF Doc No. 81: Affirmation of David A. Zelman, Esq.
Submitted by Defendant in Support of Motion:
NYSCEF Doc No. 82: Reply Affirmation of Michael Hatchett, Esq.
Judicial Notice by Court
NYSCEF Doc No. 24: Judgment with Attachments
NYSCEF Doc No. 90: Decision & Order of Appellate Division Affirming Vacatur of Default Judgment
I. Background
Defendant Seddrick Williams ("Defendant") is an MTA employee who, on or about November 15, 2015, was operating a train on the R line. Williams was finishing up his shift and informed passengers that the train was at its final stop, telling all passengers to exit. As Defendant was walking through the cars to turn the train around, he had a verbal and physical altercation with Plaintiff Allan Damsky ("Plaintiff" hereinafter), who alleged that he was left stranded on the train as a passenger. A verbal dispute ensued; Defendant alleges Plaintiff used racial slurs toward Defendant, which Plaintiff denies. Defendant also alleges that Plaintiff was the initial aggressor, as Plaintiff grabbed and struck Defendant first; however, Defendant did strike Plaintiff, leading to Defendant's arrest by NYPD. (See generally NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment at 1-2; NYSCEF Doc No. 76, Seddrick Williams Affidavit; NYSCEF Doc No. 77, Michael Hatchett Affirmation; NYSCEF Doc No. 81, David A. Zelman Affirmation.)
II. Defendant Williams' Arguments
Defendant seeks an order by this Court directing Plaintiff to return to Defendant garnished wages in the amount of $13,820.37.
A default judgment was rendered in Plaintiff's favor as Defendant failed to appear at several pre-trial conferences. On February 11, 2019, Hon. Lawrence Knipel, J.S.C., ordered an inquest before a special referee with respect to damages: "Defendant Seddrick Williams having failed to appear a default is entered against [D]efendant Seddrick Williams" (NYSCEF Doc No. 24, Judgment with Attachments at 10). This order was entered March 11, 2019 (see id.). At inquest $15,000 was awarded to Plaintiff. (See id. at 6-9; NYSCEF Doc No. 76, Seddrick Williams Affidavit ¶ 13; NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 4.) A judgment on the inquest of June 7, 2019 was entered June 11, 2019 (see NYSCEF Doc No. 24, Judgment with Attachments at 1-2).
Defendant discovered the existence of the default judgment via the Court's efiling system (see NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 16).
Defendant's counsel asserts that he did not receive notices via mailing as he left his firm and began practicing in a different office. These mailed notices were sent to his old office, and Defendant claims that Plaintiff was given notice of this change. Additionally, Plaintiff failed to upload notices to the Court's e-filing system, so Defendant could not receive notices virtually, either. A failure to upload documents to the e-filing system is a failure of court regulations, maintained counsel. For the above reasons, Defendant asserts law office failure as an excuse for non-appearance. (See NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment at 2-3; NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 16.)
On September 11, 2019, Defendant moved to vacate the judgment under CPLR 5015 (a) (1), claiming excusable default and a meritorious defense; the motion was made within one year after the default judgment was entered. The motion was granted by Hon. Kathy King, J.S.C., in a decision an order dated January 27, 2021. Justice King granted Defendant's motion to vacate the judgment, finding that the motion to vacate was timely, there was excusable default, and there was a meritorious excuse under §5015(a)(1) as "[D]efendant has demonstrated a meritorious excuse" through self-defense as Defendant claimed he was defending himself after Plaintiff used racist language against him and attacked defendant first. (See NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment.)
Meanwhile, funds had been garnished from Defendant's salary paychecks for three years (2019, 2020, and 2021) due to the default judgment entered in Plaintiff's favor (see NYSCEF Doc No. 76, Seddrick Williams Affidavit ¶ 15; NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 19). Plaintiff collected $13,820.37 from Defendant, according to Defendant (see NYSCEF Doc No. 76, Seddrick Williams Affidavit ¶ 15; NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 19); the exact amount is disputed by Plaintiff (see NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 5 ["Plaintiff received a total of $12,698.50."]).
Defendant cites the amount garnished as $13,820.37 (see NYSCEF Doc No. 76, Seddrick Williams Affidavit ¶ 15; NYSCEF Doc No. 77), but year-end paystubs he submitted show as amounts $3501.20 (2019), $9627.02 (2020), and $1079.14 (2021), which total $14,207.36 (see id. at 6-8). Plaintiff listed the amount as $12,698.50 (see NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 5). This Court adopts the figure of $14,207.36, as per Defendant's documentary evidence, unless Plaintiff's documentary evidence to be provided to Defendant confirms otherwise - such as the amount of $12,698.50 it states was garnished.
On September 28, 2022, the Appellate Division, Second Department, affirmed Justice King's order vacating the default judgment (see Damsky v Williams, 208 A.D.3d 1304 [2d Dept 2022]; NYSCEF Doc No. 90, Decision & Order of Appellate Division Affirming Vacatur of Default Judgment).
In the matter before this Court, Defendant now seeks repayment of the garnished wages. Defendant argues that the judgment has been vacated and seeks enforcement of it, i.e., that the money paid to Plaintiff be returned to Defendant. Defendant claims that it is established precedent that garnished funds must be returned after a vacated judgment, citing to CCU LLC v Steier (38 Misc.3d 1209[A], 2012 NY Slip Op 52425[U] [Civ Ct, Kings County 2012] [requiring repayment of garnished funds within ten days]) (see NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 23). Additionally,
24. In the case at bar, there is no dispute that the Court has vacated the default judgment rendered on or about March 11, 2019. And, as noted above the Court noted it did not need to stay execution of the judgment since it had been vacated.
25. However, the Court may not have been aware that the Plaintiff, prior to Defendant's Motion to Vacate had already begun to garnish Defendant's wages. The intervening pandemic exacerbated the enforcement in that it delayed the Court's ability to determine the Motion to Vacate for more than a year; allowing a substantial amount of Defendant's wages to be garnished.
26. Nevertheless, this Court having vacated the default judgment, there can be little question but that the Plaintiff and his counsel must reimburse all monies garnished.
27. Plaintiff and his counsel's refusal to remit the garnished wages is contrary to law of the state of New York, and a direct violation of the Vacated Judgment Order.(NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶¶ 24-27.)
III. Plaintiff Damsky's Arguments
Plaintiff opposes the motion in its entirety and believes the genuine issue is whether Defendant acted dilatorily in seeking the requested relief. Moreover, Plaintiff asks this Court to find the outcome of this motion moot if Defendant is found liable for his assault on Plaintiff. Should the outcome of this trial find Defendant liable, the previously garnished amount could offset the amount awarded to Plaintiff. (See NYSCEF Doc No. 81, David A. Zelman Affirmation ¶¶ 4-11.)
Plaintiff contests this motion primarily because Defendant failed to act in a timely manner and characterizes Defendant's approach as "lackadaisical" (id. ¶ 4). Furthermore, Plaintiff alleges that "this entire litigation has proceeded in this fashion due to defendant's delay and failure to monitor the Court's calendar" (id. ¶ 8).
Defendant was made aware of the default order entered in Plaintiff's favor on March 11, 2019 but Defendant did not contest this in any capacity when the judgment was entered in June of 2019 or for the next few months in which wage garnishment began. It took Defendant approximately six months after the default order was entered to make a motion to vacate the judgment (on September 11, 2019). By January 2021, the garnished wages surrendered to Plaintiff equated to $12,658.50. Plaintiff asserts that Defendant never previously asserted that garnished wages should be returned to him, outside of the initial motion to vacate. (See id. ¶¶ 5-6.)
Plaintiff also argues that he should be entitled to retain the money collected from Defendant because he (Plaintiff) was convinced that "[D]defendant was comfortable with simply paying the judgment and being done with the matter" (id. ¶ 6).
Plaintiff further rests his argument on Defendant's failure to mitigate his own damages, but concedes that the Plaintiff has "no legal basis" to continue to hold on to the funds (id. ¶ 8). However, Plaintiff believes that litigation has come to this point as a result of Defendant having inserted racial issues into this matter (see id. ¶¶ 3, 7).
At oral argument on August 18, 2023, Plaintiff's counsel argued that his client should be entitled to retain the amount garnished so far, at least as a penalty for Defendant's dilatory litigation practice, even if Defendant ultimately prevailed at trial.
IV. Discussion
Here, Defendant requests the Court to enforce the Appellate Division's ruling to vacate the judgment against him. It is established law that when a vacated judgment is entered, the individual whose funds were taken voluntarily or through enforcement is entitled to have those funds returned (see Mark C. Dillon, Prac Commentaries, CPLR C5015:14). Courts are granted the authority to review vacated judgments and make determinations referencing restitution as they see fit (see Ladco Fin. Group Inc. v Andrew Thomas Enters., 10 Misc.3d 135 [A], 2005 NY Slip Op 52100[U] [App Term, 2d & 11th Dists 2005]).
CPLR 5015 (d) provides an avenue for restitution for defendants on a subsequently vacated default judgment: "Where a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal." In Chase Manhattan Bank, U.S.A. v Kassam (167 Misc.2d 933 [Civ Ct, NY County 1996]), the defendant moved to vacate the default judgment and found success despite not seeking restitution initially. Here, Defendant seeks restitution without necessitating a new plenary action. This motion is sufficient to maintain a claim for restitution; it is captioned within the action that gave rise to the judgment (see Dillon, Prac Commentaries, CPLR C5015:14).
When a judgment is vacated, the Court may direct the Plaintiff to pay restitution as a public policy measure even if restitution was not raised in the motion to vacate, as it would be unfair to "leave the winner with only a pyrrhic victory, and the loser in continued possession of erroneously gotten gains" (Chase Manhattan Bank, U.S.A., 167 Misc.2d at 935). Leaving Plaintiff Damsky with the funds at issue would be classified as "erroneous" by the Appellate Division as the within default judgment has been vacated and has yet to go before a trier-of-fact post-vacatur. Notably, Plaintiff concedes this issue, "While it is true that given the status of his [Plaintiff Damsky's] matter, as the judgment has been vacated, there is no legal reason for the plaintiff to be in possession of defendant's funds" (NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 8)."
At the crux of Plaintiff's argument is laches. Plaintiff asserts that Defendant was "dilatory," which is why this matter has been brought before this Court. This claim is rejected, statutorily, upon two grounds. Firstly, CPLR 5015 (a) (1) provides individuals one year from the notice of entry of judgment to move to vacate the judgment by establishing an excusable default and a meritorious defense with the court, which Defendant has done. The default order was dated February 11, 2019 and entered March 11, 2019. Six moths later, on September 11, 2019, Defendant filed a motion to vacate. Plaintiff concedes this fact at NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 6. Pursuant to CPLR 5015 (a) (1), Defendant and the Appellate Division found excusable neglect and a meritorious defense.
As a second matter, CPLR 317 provides that a person served by any means other than personal service may file suit within a year, starting from when they first acquired knowledge of entry of judgment. Defendant did so.
Finally, this Court finds that Plaintiff's request to retain Defendant's money is deemed outrageous, let alone without merit. As the litigation stands now, the judgment is vacated. It was nullified. The inquest finding of liability in the amount of $15,000 is a nullity. The present status is functionally equivalent to the status quo ante the default determination. There is no valid reason for Plaintiff to retain the $13,820.37 or whatever amount was garnished from him. Unless this Court orders its restitution to Defendant, it would leave him "with only a pyrrhic victory," as found in Chase Manhattan Bank, U.S.A. (167 Misc.2d at 935). Therefore, in following the logic detailed in that case, this Court finds that restitution of the garnished salary must be mandated (see also Schildkraut v Schildkraut, 240 A.D.2d 649 [2d Dept 1997]; M.S. Berkoff Co., Inc. v McGuire, 54 Misc.3d 82 [App Term, 2d, 11th & 13th Dists 2017]).
Moreover, after being unsuccessful at the Appellate Division - it affirmed Justice King's order vacating the default judgment - Plaintiff refused to return Defendant's garnished salary amounts to him after being requested to do so, as per Defendant's counsel:
21. In an[d] around November/December 2022, I contacted Plaintiff's counsel seeking and arrangement whereby Plaintiff would repay all sums received by the garnishment of Defendant's wages. Plaintiff's counsel demurred.
22. When I inquired about repayment of funds he (Plaintiff's counsel) had received from the garnishment, he again demurred.(NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶¶ 21-22.) This is not refuted by Plaintiff's counsel, who argued that his client should be permitted to retain the garnished amounts "as an offset against whatever amount is awarded the plaintiff" (NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 11), which is quite presumptuous in assuming that his client will prevail at trial. Moreover, Plaintiff's counsel ascribes blame to Defendant for not settling the matter by the latter's refusal to permit Plaintiff to retain the money in satisfaction of Plaintiff's claim:
Moreover, it should be pointed out in an effort to resolve this matter without further litigation, the plaintiff has proposed to defendant that the within matter could be resolved with no additional payment by the defendant. However, at present, it appears defendant has chosen to litigate this matter further, rather than simply resolve it. Therefore, the undersigned respectfully requests that the Court deny the defendants' application in its entirety.(Id.)
Additionally, it boggles the mind that Plaintiff's argues for retention of Defendant's money on the ground that Defendant refuses to settle the matter at the total amount garnished.
Plaintiff's outlandish assertion that he possesses a right to retain money garnished from Defendant despite the vacatur of a default judgment merits the appellation of legal chutzpah, joining the pantheon of other similarly situated arguments and actions within the legal sphere (e.g. People v Campbell, 97 N.Y.2d 532, 536 [2002] [Rosenblatt, J., dissenting] [defendant causing delay in sentencing argued failure to sentence him promptly]; Jimenez v Bolos, 2022 WL 3699818 [Sup Ct, Bronx County 2022, July 5, 2022, No. 816503/21 [counsel for defendant in motor vehicle accident objected to consideration of portion of police report stating officer arrested defendant for intoxicated driving]; John Quealy Irrevocable Ins. Trust v AXA Equitable Life Ins. Co., 2021 WL 345231 [Sup Ct, NY County, Jan. 29, 2021, No. 654340/18] [party seeking to undo stipulation executed by counsel of record - which brought discovery to halt and avoided court-ordered deposition that would have uncovered fraud and misrepresentations - so that he can have day in court he defrauded]; Algu v Rasiawan, 48 Misc.3d 1216 [A], 2015 NY Slip Op 51146[U], *3 [Sup Ct, Queens County 2015] [counsel submitted thousands of documents for in camera inspection without Bates-stamping them]; People ex rel Mack v Warden, Rikers Is. Corr. Facility, 36 Misc.3d 1224 [A], 2012 NY Slip Op 51463[U], *5 [Sup Ct, Bronx County 2012] [parolee facilitated delay of hearing by refusing to get dressed and then claimed failure to timely conduct hearing]; Tarataglione v JP Morgan Chase & Co., 2014 WL 12712330 [Sup Ct, Rockland County, Jan. 10 2014, No. 31219/12] [party avoiding disclosure claimed filing of notice of issue terminated discovery obligations]; Leo v City of New York, 2011 NY Slip Op 33683[U], *7 [Sup Ct, NY County 2011] [plaintiff serving extensive post-deposition discovery demands following defendants' lengthy depositions, while at same time arguing that same practice must be denied when disclosure is being sought from him]; Gorelik v Sobol, 20 Misc.3d 1134 [A], 2008 NY Slip Op 51725[U], *8 [Sup Ct, Kings County 2008] [month-to-month sub-tenant without lease claimed right to purchase apartment at price of ten years earlier]; Harris v Young, 2003 NY Slip Op 30219, *9 [Sup Ct, Kings County 2003] [having received every penny to which he previously claimed entitlement, plaintiff claimed entitlement to commence new action based on loophole he inserted into general release]; Burns v Burns, 2001 NY Slip Op 40362[U], *1 [Sup Ct, Nassau County 2001] [party owed wife approximately $100,000 in support arrears and yet asked court to grant downward modification of support, while he paid his attorneys over $130,000 in legal fees at the rate of $500 per hour and showered girlfriend with multiple expensive gifts]; Application of Kubarych, 1993 WL 13716225 [Sup Ct, NY County, May 21, 1993, No. 16111/92] [party who secretly furnished basketball tickets to arbitrator sought vacatur of arbitrator's award, claiming arbitrator misconduct]; People v Velez, 124 Misc.2d 612, 614 [Sup Ct, Bronx County 1984] [defendant claimed violation of right to speedy trial after she deceptively used different name and address, causing delay]; Cacucciolo v City of New York, 127 Misc.2d 513, 516 [Civ Ct, Kings County 1985] [city refused to return costs to purchasers at auction of property city sold but did not own]).
Defendant is entitled to interest on the restituted amount (see Ladco Fin. Group, Inc. v Andrew Thomas Enter., 10 Misc.3d 135 [A], 2005 NY Slip Op 52100[U] [App Term, 2d & 11th Dists]; Down East Seafood, Inc. v Sibling Fuel Co., Inc., 64 Misc.3d 1220 [A], 2019 NY Slip Op 51207[U] [Civ Ct, NY County 2019]). This is because Plaintiff was aware of the pendency of the motion to vacate the default and yet elected to enforce it nonetheless (see id. ["it would have been better practice to refrain from collecting upon the judgment until the court had made a ruling"]). The garnishment took place periodically concomitant with the payment to Defendant of his salary. Therefore interest must accrue in stages, based on presumed paydates of Defendant's salary (see CPLR 5001).
According to Defendant, garnishment began in August 2019 (see NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 18). According to Plaintiff, it ended in January 2021 (see NYSCEF Doc No. 81, David A. Zelman Affirmation ¶ 5), following Justice King's order vacating the default judgment (see NYSCEF Doc No. 77, Michael Hatchett Affirmation ¶ 18).
This Court notes that as per Defendant's year-end statements from New York City Transit, he was paid every other Thursday for a period comprising the preceding 14-day Sunday-to-Saturday pay period (see NYSCEF Doc No. 76, Seddrick Williams Affidavit at 6-8).
V. Conclusion
Accordingly, it is hereby ORDERED that:
(1) Defendant's motion for restitution of the amount garnished from his salary to satisfy the default judgment is GRANTED.
(2) Plaintiff shall provide Defendant accurate documentary evidence as to the individual amounts garnished from Defendant's salary and the dates the garnishments took place, no later than October 20, 2023. In the event Plaintiff complies.with said mandate by October 20, 2023, Plaintiff is then directed to make restitution to Defendant of the total amount along with interest at nine percent per annum on each individual amount garnished accruing as of the date of the respective garnishment, by October 31, 2023.
(3) In the event Plaintiff fails to comply with decretal paragraph (2), Defendant shall submit an affidavit of same to the Clerk and shall have judgment entered against Plaintiff in the amount of $14,207.36, along with interest at nine percent per annum accruing as follows: $318.29 accruing August 8, 2019; $318.29 accruing August 22, 2019; $318.29 accruing September 5, 2019; $318.29 accruing September 19, 2019; $318.29 accruing October 3, 2019; $318.29 accruing October 17, 2019; $318.29 accruing October 31, 2019; $318.29 accruing November 14, 2019; $318.29 accruing November 28, 2019; $318.29 accruing December 12, 2019; $318.30 accruing December 26, 2019; $370.27 accruing January 9, 2020; $370.27 accruing January 23, 2020; $370.27 accruing February 6, 2020; $370.27 accruing February 20, 2020; $370.27 accruing March 5, 2020; $370.27 accruing March 19, 2020; $370.27 accruing April 2, 2020; $370.27 accruing April 16, 2020; $370.27 accruing April 30, 2020; $370.27 accruing May 14, 2020; $370.27 accruing May 28, 2020; $370.27 accruing June 11, 2020; $370.27 accruing June 25, 2020; $370.27 accruing July 9, 2020; $370.27 accruing July 23, 2020; $370.27 accruing August 6, 2020; $370.27 accruing August 20, 2020; $370.27 accruing September 3, 2020; $370.27 accruing September 17, 2020; $370.27 accruing October 1, 2020; $370.27 accruing October 15, 2020; $370.27 accruing October 29, 2020; $370.27 accruing November 12, 2020; $370.27 accruing November 26, 2020; $370.27 accruing December 10, 2020; $370.27 accruing December 24, 2020; $539.57 accruing January 7, 2021; $539.57 accruing January 21, 2021, along with costs in the amount of $100 for this motion, the total amount to be calculated by the Clerk.