Opinion
No. 185/2003.
03-22-2016
ADELPHI ACADEMY OF BROOKLYN, Plaintiff, v. Semyon TABEL and Alla Tabel, Defendant(s).
Anthony J. Maiocchi, PLLC, Hawthorne, for Plaintiff. Semyon Tabel, Pro Se Defendant.
Anthony J. Maiocchi, PLLC, Hawthorne, for Plaintiff.
Semyon Tabel, Pro Se Defendant.
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the order to show cause of defendant movant Semyon Tabel, filed on August 12, 2015, under motion sequence number one, for an order: (1) vacating a judgment obtained on default by plaintiff Adelphi Academy of Brooklyn (hereinafter Adelphi) and (2) releasing any and all restraining notices placed on his accounts; and (3) prohibiting any further collection efforts.
Order to Show Cause
Affidavit in Support
Exhibits A–D
Affirmation in Opposition
Exhibits A–J
BACKGROUND
On January 3, 2003, Adelphi commenced the instant action by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's Office. The complaint alleges fourteen allegation of fact in support of two causes of action. The first cause of action is for damages in the amount of $12,179.99 caused by the defendants' alleged breach of an “Enrollment Contract” (hereinafter the contract). The second cause of action is for costs and attorney's fees in the amount of $4,263.00 incurred in enforcing the contract. Adelphi obtained a Kings County Clerk's Judgment (hereinafter the subject judgment) in the instant action in the amount of $12,639.99.
MOTION PAPERS
Semyon Tabel's motion papers consist of an order to show cause, his affidavit in support and four annexed exhibits labeled A through D. Exhibit A is the contract. Exhibit B is a copy of a death certificate reflecting that Alla Tabel died on July 24, 2008. Exhibit C is a copy of an affidavit of service of the commencement papers on Semyon Tabel. Exhibit D contains two documents. The first is denominated “Affidavit of Facts Constituting the Claim the Default and the Amount Due” and contains sworn allegations by Anthony J. Maiocchi who describes himself as plaintiff's attorney. The second document is the “Statement For Judgment” in the instant action for the total sum of $12,639.99.
Plaintiff's opposition papers contain an affirmation of its counsel, Anthony Mariocchi (hereinafter Mariocchi) and ten annexed exhibits labeled A through J. Exhibit A is a copy of an order of this Court dated October 30, 2015 and a copy of Semyon Tabel's motion papers. Exhibit B is the a copy of the contract and various other documents. Mariocchi describes the other documents as papers submitted by a parent to enroll their child at Adelphi. Exhibit C contains a copy of the instant summons and complaint. Exhibit D contains affidavits of service of the commencement papers on the defendants and affidavits of the mailing of those papers pursuant to CPLR 3215. Exhibit E contains a copy of the subject judgment. Exhibit F contains a copy of the notice of entry of the subject judgment, an information subpoena and an affidavit of service. Exhibit G are copies of three letters, each of them dated August 4, 2003 on the letterhead of Elhilow & Maiocchi, LLP. Exhibit H and I contain a document denominated “Income Execution”. Exhibit J contains three affidavits of service by mail to Semyon Tabel at three different addresses of the “Judgment with Notice of Entry, Restraining Notice With Information Subpoena.”
LAW AND APPLICATION
Semyon Tabel filed the instant order to show cause pro se. On October 30, 2015, Semyon Tabel represented himself using the services of an interpreter. On that date, the Court adjourned the motion to December 15, 2015 and directed Adelphi to serve opposition papers on Semyon Tabel by December 14, 2015, and to include documentation of the default judgment, personal jurisdiction over Seymon Tabel and grounds for the claims against him. Adelphi complied.
Semyon Tabel's motion papers claims that he first learned about the judgment in June of 2015, when he received a notice of garnishment. Semyon Tabel swears that he had never entered into a contract with Adelphi or agreed to assume anyone else's debt to Adelphi.
Semyon Tabel did not state the law or statute he was relying upon for the relief sought. The Court deems the motion to be a request to vacate the subject judgment pursuant to CPLR 5015(a)(4) based on lack of jurisdiction. “Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. These categories represent a codification of the principal grounds upon which courts have traditionally vacated default judgments as part of their “inherent discretionary power” (see, CPLR 5015 ; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:11, at 476 [1992] ). Additionally, a court has inherent discretionary power to vacate an order or judgment in the interests of substantial justice (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 (2003, Rosenblatt, J.).
It thus follows that CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee (see id.; 3, 760 N.Y.S.2d 727, 790 N.E.2d 1156d Preliminary Report of Advisory Comm on Practice and Procedure, 1959 N.Y. Legis Doc No. 17, at 204)” (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 733 [2003] ).
A court may vacate a default judgment pursuant to proof of a meritorious defense and a reasonable excuse for the default, or upon proof that the judgment resulted from fraud, misrepresentation, or misconduct by an adverse party (Halali v. Vista Environments, Inc., 8 A.D.3d 435, 779 N.Y.S.2d 117 [2nd Dept 2004] citing Chemical Bank v. Vazquez, 234 A.D.2d 253, 650 N.Y.S.2d 773 [2nd Dept 1996] ).
A motion for relief from a default judgment must be brought in the original action or proceeding (Calabrese Bakeries, Inc. v. Rockland Bakery, Inc., 83 A.D.3d 1060, 1061, 923 N.Y.S.2d 556 [2nd Dept 2011] citing James v. Shave, 62 N.Y.2d 712, 714, 476 N.Y.S.2d 532 [1984] ). There are virtually no exceptions to this well-established rule (Calabrese Bakeries, Inc. 83 A.D.3d 1060, 923 N.Y.S.2d 556 [2nd Dept 2011], citing Oppenheimer v. Westcott, 47 N.Y.2d 595, 602–603 [1979] ).
In the instant matter, Semyon Tabel alleges that he never entered into a contract with the plaintiff and that he only received notice of the action when his wages were garnished upon. It is undisputed that, Alla Tabel, his deceased wife had entered into a contract for tuition and related educational expenses for non-party Irina Tabel (hereinafter Irina).
Adelphi's complaint is verified by the party and, accordingly, may be used as an affidavit pursuant to CPLR 105(u). The affirmation of Adelphi's counsel demonstrates no personal knowledge of the transactions alleged in the complaint. It does demonstrate knowledge of the collection activity on the subject judgment that have taken place as of the commencement of the action. His affirmation is probative as to the matters post commencement collection activity but not evidence of any of the matters asserted in the complaint (see Brusco v. Braun, 199 A.D.2d 27 at 31–32, 605 N.Y.S.2d 13 [1st Dept 1993] ).
The affirmation of counsel alleges the following salient facts. On or about January 3, 2003, the instant action was commenced by summons and complaint. The plaintiff “waived” the second cause of action for attorney's fees. Pursuant to “proper procedure a judgment was entered against defendant by plaintiff's attorneys on June 4, 2003 in the amount of $11,538.55 (sic )”. In July of 2003, an account at Washington Mutual was restrained. A conditional release of the account was agreed to by the defendant Alla Tabel which included certain repayment procedures. Those payments were defaulted upon sometime in 2008. It was not until June of 2015, that the plaintiff became aware of Tabel's place of employment and caused to be served a notice of income execution.The verified complaint alleges that the defendants entered into an enrollment contract to enroll the defendants' daughter Irina, into the plaintiff's school for the 2001/2002 school year at the agreed upon tuition of $14,000.00 plus the cost of books not returned. The plaintiff has substantially performed all of the terms, conditions and obligations called for on its part to be completed under the terms of the contract. The defendants have failed to comply with the terms, conditions and obligations called for on their part under said enrollment contract. The defendants breached the contract by failing to make all payments due and a demand was made upon defendants. Due to the defendants' breach of the contract plaintiff is entitled to damages in the sum of $12,179.99.There is no allegation that Irina actually attended the school for the 2001–2002 school year.
The enrollment contract is annexed to the summons and complaint. The contract contains several provisions that raise issues as to the terms, breach and amount due. Specifically, the contract is dated in November 2001, yet the deposit was due approximately three months prior to entering into the contract, on or before July 23, 2001. There are three tuition payment plan options and it is impossible to discern which option was chosen. There is a provision that states that the agreement to pay is unconditional and that even if Irina did not attend the school the signatory is still responsible for the full amount.
The papers submitted by the parties raise significant concerns regarding the validity of the subject judgment. It should be noted that the judgment was obtained via CPLR 3215(a) which provides that when a defendant has defaulted that the “plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default” (CPLR 3215[a] ). The limitation of clerk's judgments to claims for a “sum certain” “contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due” (Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106 ; Pikulin v. Mikshakov, 258 A.D.2d 450, 451, 684 N.Y.S.2d 598 [2nd Dept 1999] ). The statute is intended to apply to only the most liquidated and undisputable of claims, such as actions on money judgments and negotiable instruments (see Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d at 572, 406 N.Y.S.2d 743, 378 N.E.2d 106 ; Pikulin, 258 A.D.2d at 451, 684 N.Y.S.2d 598[2nd Dept 1999] ; Siegel, David D., N.Y. Practice, at 477 [4th ed.] ). In the case at bar where the alleged damages based on breach of contract cannot be determined without extrinsic proof, then the cause of action is not considered one for a sum certain (see Pikulin v. Mikshakov, 258 A.D.2d 450, 684 N.Y.S.2d 598 [2nd Dept 1999] ).
Furthermore, Adelphi's second cause of action was for all costs associated with commencing the action, including attorney's fees. Adelphi's complaint claimed that it was entitled to damages of $4,263.00 on the second cause of action. Adelphi calculated the amount of costs and attorney's fees on it own without regard to a contract provision setting for a precise easily ascertainable calculation method. Therefore, even assuming, for the sake of argument, that the first cause of action for breach of the enrollment contract can be deemed a claim for a sum certain, the second cause of action undisputably cannot be deemed as such (see Matter of Aaron v. Steele Law Firm, P.C., 127 A.D.3d 1385, 8 N.Y.S.3d 664 [3rd Dept 2015] ). Consequently, the Kings County Clerk had no statutory authority to enter the subject judgment in this case.
This is so notwithstanding the claim of Adelphi's counsel that attorney's fees from the second cause of action was purportedly waived. As there is no authority under the CPLR for “waiving” a cause of action, the Court deems that statement to mean that Adelphi discontinued the second cause of action seeking attorney's fees. However, in accordance with CPLR 3217, in order to discontinue a cause of action without a court order the party must serve “upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court” (see CPLR 3217 ). In the instant matter no answer had been served, therefore, the time to discontinue was limited to within twenty days after service of the complaint. Further, the plaintiff was required to file the notice with proof of service with the clerk of the court. The plaintiff did not perform any of these requirements. Accordingly, the cause of action for attorney's fees remained a valid cause of action. Therefore, the plaintiff should have applied to the court for a default judgment rather than entering a judgment directly with the clerk (see CPLR 3215[a] ; Aaron v. Steele Law Firm, PC, 127 A.D.3d 1385, 8 N.Y.S.3d 664 [3rd Dept 2015] citing Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 222–224, 927 N.Y.S.2d 349 [2nd Dept 2011] ; Woodward v. Eighmie Moving & Stor., 151 A.D.2d 892, 892–893, 543 N.Y.S.2d 187 [3rd Dept 1989] ). The clerk's judgment is invalid and, therefore, is vacated.
It is clear from the contract submitted in support of the motion and in opposition that Tabel did not enter into the agreement. The only defendant's signature on the contract is that of Alla Tabel. Further, the plaintiff alleges that the defendants renegotiated the debt in 2003. The evidence submitted in support of this contention are three letters that do not reference any renegotiation, assumption, or acknowledgment of debt. The letters only discuss the release of a certain bank account at Washington Mutual. It is well established that a contract for private school tuition entered into by one parent does not bind the other parent (see Brandeis School, Inc., v. Yakobowicz, 130 A.D.3d 850, 15 N.Y.S.3d 64 (2nd Dept 2015) citing Moezinia v. Ashkenazi, 105 A.D.3d 920, 921, 963 N.Y.S.2d 325, (2nd Dept 2013) ; see also Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 A.D.3d 122, 127, 921 N.Y.S.2d 329 [2nd Dept 2011] ). The plaintiff has failed to submit any evidence that Tabel entered into a contract with it or that he assumed any of Alla Tabel's debt. Adelphi also submitted documentary evidence tending to show that Irina in fact did not attend the school for the 2001–2002 academic year. In light of both the improper procedure followed by the plaintiff and the lack of any support that Tabel owes anything to the plaintiff, the clerk's judgment is invalid.
The subject judgment is vacated and Adelphi is directed to cease all collection activity based on it forthwith. The Court's decision is based on the invalidity of the subject judgment due to lack of statutory authority of the Kings County Clerk's to render it and not based on the courts lack of possession of personal jurisdiction over Semyon Tabel. Accordingly, the Court retains subject matter jurisdiction over the action and both sides may take whatever procedural steps they deem appropriate.
CONCLUSION
Defendant's motion to vacate the subject judgment and for an order directing Adelphi to cease all collection activity on the subject judgment is granted.
The foregoing constitutes the decision and order of this Court.