Opinion
CV-000658-18/KI
08-27-2020
DEFINITIVE HEALTHCARE, Plaintiff, v. SUN KNOWLEDGE INC. d/b/a Go Telecare, Defendant.
Alan B. Estreicher, Esq., Meyers, Saxon & Cole, 3620 Quentin Road, Brooklyn, NY 11234, (718) 339-3330, Counsel for Plaintiff Randy Scott Zelin P.C., 110 E 59th Street, Fl. 22, New York, NY 10022, (212) 935-1600, Counsel for Defendant
Alan B. Estreicher, Esq., Meyers, Saxon & Cole, 3620 Quentin Road, Brooklyn, NY 11234, (718) 339-3330, Counsel for Plaintiff
Randy Scott Zelin P.C., 110 E 59th Street, Fl. 22, New York, NY 10022, (212) 935-1600, Counsel for Defendant
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4
AFFIRMATION IN OPPOSITION 5
INTRODUCTION
This Honorable Court Decides and Orders after oral argument, Defendant's Notice of Motion pursuant to CPLR 5015 (a) (1) and CPLR 2005 to Vacate Defaulted Denial of Motion to Strike Notice of Trial pursuant to 22 NYCRR 208.17 for the non-appearance of Defendant Movant, for the reasons as set forth below is hereby GRANTED.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff commenced action against Defendant for Goods Sold and Delivered on June 22, 2010 in the amount of $15,000.00 on January 10, 2018. Upon Defendant's failure to serve Answer, Plaintiff moved for Default Judgment in the amount of $25,703.70 on March 27, 2018, which was entered on April 9, 2018. Defendant filed Order to Show Cause to Vacate Default Judgment on May 22, 2018, which parties settled on return date of June 5, 2018. Although Defendant filed Answer on July 3, 2018, Plaintiff argued as stated in its Affirmation in Opposition, "defendant's answer was interposed as of June 25, 2018 and did not contain any demands for discovery by the defendant; and that plaintiff waited over two months to see if any discovery requests materialized, which they did not, and at that point, plaintiff concluded defendant was not engaging in discovery in this matter and proceeded to serve and file a Notice of Trial on or about August 30, 2018." Plaintiff filed the Notice of Trial on August 14, 2018. Defendant filed Motion to Strike from Trial Calendar on September 19, 2018, which was adjourned four times ultimately to be Denied on June 12, 2019 for the non-appearance of Defendant-Movant. Plaintiff argued as stated in its Affirmation that Defendant "still has not made any formal demands for discovery," although by letter, made certain "informal document demands." Defendant concedes that its informal demands was a cost-cutting measure.
Defendant's Counsel alleges by Affirmation that his non-appearance on June 12, 2019 was because Counsel was out of the country from June 11, 2019 to June 22, 2019. The Court was not notified of Counsel's absence due to alleged miscommunication between counsel and his assistant. By affidavit, assistant states detailed chronology of various efforts to seek adjournment with Plaintiff's counsel, to no avail. It was further erroneously believed by both Counsel and his assistant that the other had eventually secured adjournment through affirmation by litigation support service. However, neither the Court nor Plaintiff's counsel was aware that Defendant's counsel was out of the country and believed that motion would be argued on the adjourned date of June 12, 2019. Consequently, underlying Motion to Strike Notice of Trial was denied by default for non-appearance of movant on June 12, 2019, resulting in the filing of this instant motion to vacate this Default on July 8, 2019.
Defendant contends that reasonable law office failure was the cause of its non-appearance, which constitutes excusable default and seeks relief from the default pursuant to CPLR 5015 (a) (1) and CPLR 2005 in this instant motion. Opposition dated August 26, 2019 was served and filed by Plaintiff.
DISCUSSION
It is well established law that it is within the sole discretion of the court in the interest of justice to vacate default judgment based upon "excusable default" pursuant to CPLR 2005, CPLR 3012 (d), and CPLR 5015 (a) (1). At issue to this instant matter are:
CPLR 2005 : Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.
CPLR 5015 (a) (1) :
(a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry;
Although absent from CPLR 5015 (a) (1), CPLR 2005 explicitly incorporates CPLR 5015 (a) as it provides "law office failure" as an "excuse" for "default", "in the interest of justice". "In determining whether the law-office failure constitutes an excusable default, it is squarely within the court's discretion to decide whether the proffered excuse is reasonable under the circumstances" ( Mediavilla v. Gurman, 272 AD2d 146, 148, 70 7 NYS 2d 432 [1st Dept 2000] ; Ellington v. Dormitory Auth. of the State of NY, 52 Misc 3d 1208 [A], 41 NYS 3d 718 [Sup Ct, New York County 2016] ). To borrow from another similarly situated statutory analysis as to facts and circumstances which constitute "law office failure" as reasonable excuse for delay or default, CPLR 3215 (c) is quite helpful. Precedential case law authority for CPLR 3215 (c) aptly provides and delves into detail analysis as to specific facts and circumstances that viably establishes law office failure, notwithstanding that CPLR 2005 and CPLR 5015 (a) (1) uses the term "excusable default," which is analogous to "sufficient cause" as termed by CPLR 3215 (c).
CPLR 3215 (c) Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.
Similarly to CPLR 2005 and CPLR 5015 (a) (1) reasonable excuse, it is within the sole discretion of the court to grant the carved out CPLR 3215 (c) "sufficient cause" exception for extension of time beyond the one-year time limit after default in which to file for entry of judgment ( Ewart v. Maimonidies Med. Ctr. , 239 AD2d 543, 544 [2d Dept 1997] ; Herzbrun v. Levine , 23 AD2d 744, [1st Dept 1965] ; HSBC Bank USA, N.A. v. Grella , 145 AD3d at 671 ).It has been held that the party invoking the sufficient cause exception must demonstrate, "a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" ( Aurora Loan Servs., LLC v. Hiyo , 130 AD3d 763, 764 [2d Dept 2015] ; see Wells Fargo Bank, N.A. v. Bonanno , 146 AD3d 844 , 845-846 [2d Dept 2017] ; see also Maspeth Fed. Sav. & Loan Assn. v. Brooklyn Heritage, LLC , 138 AD3d 793 [2016] ; Aurora Loan Services, LLC v. Hiyo, 130 AD3d 763, 764 [2015] ; Pipinias v. J.Sackaris & Sons, Inc. , 116 AD3d 749, 751 [2014] ; Rosado v. Economy El. Co. , 236 AD2d 598 [1997] ; Valure v. Century 21 Grand , 35 AD3d 591, 592 [2006] ). Similarly, pursuant to CPLR 5015 (a) (1), it is also within the court's sole discretion to determine that movant has a potentially meritorious action ( Mediavilla, 272 AD2d at 148 ; Ellington v. Dormitory Auth. of the State of NY , 52 Misc 3d 1208 [A], 41 NYS 3d 718 [Sup Ct, New York County 2016] ). It is within the exclusive province and sound discretion of the court whether an excuse presented for the delay is reasonable and passes muster as to "sufficient cause" exception ( Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d at 752, citing Giglio v. NTIMP, Inc. , 86 AD3d at 308 ; see U.S. Bank, N.A. v. Dorvelus , 140 AD3d 850, 852 [2d Dept 2016] ). An excuse which is amorphous or otherwise specious constitutes no excuse at all (see Dugan v. Belik , 170 AD2d 746 [3rd Dept 1991] ). Precedential authority has well established pursuant to CPLR 3215 (c), law office failure may be viable grounds for reasonable excuse ( Matter of Esposito , 57 AD3d 894 [2d Dept 2008] ). However, the bar is high. Notwithstanding the court has explicit discretion pursuant to CPLR 2005 "as a matter of law in the interests of justice to excuse delay or default resulting from law office failure," said excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations ( CPLR 2005 ; CEO Bus. Brokers, Inc. v. Alqabili , 105 AD3d 989, 990 [2d Dept 2013] ; HSBC Bank USA, N.A. v. Wider , 101 AD3d 683 [2d Dept 2012] ). The ppellate Division, Second Division held:
"The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to PLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus , 140 AD3d at 852 ; Baruch v. Nassau County , 134 AD3d 658, 659 ; Mattera v. Capric , 54 AD3d 827, 828 ). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred."
Ibrahim v. Nablus Sweets Corp. , 161 AD3d 961, 964 [2d Dept 2018] ).
"Here, the plaintiff's assertions that it did not take any proceedings for entry of judgment within one year after the defendants' default due to law office failure occasioned by the dissolution of the law firm originally representing it, combined with delays caused by Hurricane Sandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of a reasonable excuse"
U.S. Bank, N.A. v. Dorvelus , 140 AD3d 850, 852 [2d Dept 2016], citing Bank of NY Mellon v. Colucci , 138 AD3d 1047, 1047-1048, [2016] ; Buchakian v. Kuriga , 138 AD3d 711, 712-713, [2016] ; Baruch v. Nassau County , 134 AD3d at 659 ; Ryant v. Bullock , 77 AD3d 811, 812 [2010] ).
"Here, the affirmation of an attorney from the law firm representing the appellants explained that the firm was downsizing significantly, two attorneys who had been handling the case were no longer with the firm, and the newly-assigned attorney's secretary, upon whom the attorney relied for calendaring matters, had recently left the firm. This was a sufficiently detailed explanation for the law firm's failure to appear"
( Matter of Esposito , 57 AD3d 894, 895 [2d Dept 2008], citing Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp. , 45 AD3d 634, 636 [2007] ; Friedman v. Crystal Ball Group, Inc., 28 AD3d 514, 515 [2006] ; Weekes v. Karayianakis , 304 AD2d 561, 562 [2003] ; Morris v. Metropolitan Transp. Auth. , 191 AD2d 682 [1993] ). "In this case, the excuse proffered by the defendants was limited to the self-serving and unsubstantiated allegations" ( Morris v. Metropolitan Transp. Auth. , 595 NYS 2d 539, 540 [2d Dept 1993] ).
"Here, defense counsel's allegation of law office failure was vague, conclusory, unsubstantiated (see HSBC Bank USA N.A. v. Wider , 101 AD3d 683 [2012] ; Cantor v. Flores , 94 AD3d 936, 937 [2012] ; Wells Fargo Bank, N.A. v. Cervini , 84 AD3d 789, 789-790 [2011] ), and unreasonable under the circumstances (cf. Stolpiec v. Wiener , 100 AD2d 931, 932 [1984] )."
CEO Bus. Brokers, Inc. v. Alqabili , 105 AD3d 989, 990 [2d Dept 2013] ).
In the instant matter herein, Defendant's Counsel as movant has provided detailed articulable facts that are not amorphous, vague, specious nor subject to arbitrary interpretations as to its law office failure to viably establish reasonable excuse for the default of its underlying motion to strike notice of trial pursuant to 22 NYCRR 208.17. Defendant's Counsel argues that he was out of the country and made good faith diligent efforts to adjourn the argument on the motion on June 12, 2019. Counselor made efforts to have his law office assistant procure a consent adjournment with opposing counsel and further affirms that he provided an affirmation of adjournment with litigation support service (Defendant Affirmation in Support, Exhibit C-E). Nevertheless, apparently his and his assistant's efforts although deemed diligent were unsuccessful in informing the court and opposing counsel for the application for an adjournment because he was out of the country and miscommunications with his assistant. Consequently, the motion was marked denied on default for non-appearance by movant. The chronological timeline of the court's Case Summary indicates issue was joined July 3, 2018; Notice of Trial and Certificate of Readiness were filed August 14, 2018; and thereafter underlying motion to strike Notice of Trial was filed September 19, 2018 by Defendant. Notwithstanding Plaintiff's objections, based upon this chronology, it is found that movant satisfies the second prong of CPLR 5015 (a) (1), potentially meritorious claim for the underlying motion to strike Notice of Trial. In attempt to settle this motion, Plaintiff at oral argument and in its Affirmation in Opposition "suggested that defendant withdraw its [underlying motion to strike Notice of Trial] and serve a formal discovery demand" with corrected deficiencies. Particularly because of the Covid-19 Pandemic having wreaked havoc on the court's dockets, This Court strenuously encouraged such stipulation of the underlying motion to strike Notice of Trial, notwithstanding not currently before This Court.
For the foregoing reasons, Underlying Motion to Strike Notice of Trial to be returned to motion calendar by Clerk of Court; Defendant's Notice of Motion pursuant to CPLR 5015 (a) (1) and CPLR 2005 to Vacate Defaulted Denial of Motion to Strike Notice of Trial pursuant to 22 NYCRR 208.17 based upon the non-appearance of movant is GRANTED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED: