Opinion
Index No. 314378-2021 No. 2022-50941
09-27-2022
Dunn Beulah XV, L.P., Petitioner, v. Carmen Rodriguez, Respondent, and "JOHN DOE" and "JANE DOE" Respondents-Occupants
Unpublished Opinion
Shorab Ibrahim, J.
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY PETITIONER TO VACATE THE DEFAULT ENTERED ON MAY 16, 2022:
Notice of Motion, Affirmation & Exhibits Annexed No. 15-20 (NYSCEF)
Affirmation in Opposition & Exhibits Annexed # 23-27
Reply Affidavit & Exhibits Annexed # 30
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
PROCEDURAL POSTURE & RELEVANT FACTS
On March 17, 2022, petitioner's counsel, Hertz, Cherson & Rosenthal, P.C. (HCR), respondent's Guardian Ad Litem, and respondent's newly retained counsel, Mobilization for Justice, Inc. (MFJ) all appeared. The matter was adjourned to April 11, 2022, with an answer due by March 31, 2022.
The answer was timely filed. (see NYSCEF Doc. 12). On April 11, 2022, no settlement was reached, and the matter was adjourned to May 16, 2022 at 2:30 P.M. for a pre-trial conference. All relevant parties, including petitioner's counsel, were present and agreed to the date and time. On May 13, 2022, the court sent an email to petitioner's counsel and respondent's counsel reminding them that the pre-trial conference was "in-person." The email contains both the date and the time for the conference. (see NYSCEF Doc. 24).
On May 16, 2022, petitioner did not appear for the pre-trial conference and the case was dismissed. (see NYSCEF Doc. 14).
Petitioner now moves to vacate its default. The motion is supported with an attorney affirmation wherein counsel states that "we were unaware that the matter was placed on the court's calendar for that day" and "before we were made aware of the court date, the matter had already been dismissed." (see NYSCEF Doc. 15 at par. 9). Petitioner argues that law office failure does not preclude a court from excusing a default, that courts have vacated defaults where an attorney attested to mistakenly calendaring, that cases should be decided on their merits, and that petitioner should not be prejudiced by its attorneys' "careless" error. (id at 10, 11 and 13).
For unexplained reasons, petitioner waited two and a half months to make the instant motion.
Respondent opposes the motion on several grounds. Respondent argues that 22 NYCRR § 208.14 (3) mandates this motion be brought by order to show cause, rather than notice of motion. As to the merits of the motion, respondent argues that petitioner fails to demonstrate a reasonable excuse for its non-appearance and fails to demonstrate it has a meritorious claim.
As to excusable default respondent's counsel argues that general allegations of law office error are insufficient. She notes that she sent (2) emails from court to petitioner's counsel on May 16, 2022, in addition to the court's email on May 13, 2022. (see NYSCEF Doc. 23 at par. 16). The opposition points out that the motion completely fails to allege a meritorious claim.
In its reply, petitioner's counsel again argues that "petitioner should not be prejudiced by their attorneys' careless error." (NYSCEF Doc. 13 at par. 4). The reply further notes that the pleadings state a meritorious cause of action.
DISCUSSION
A default may be vacated in the court's discretion upon a showing of a reasonable excuse for default and a meritorious defense to the proceeding. (see CPLR §5015(a)(1); Kapoor v Interzan LLC, 172 A.D.3d 519, 520, 2019 NY Slip Op 03745 [1st Dept 2019], citing Eugene Di Lorenzo, Inc. v A. C. Dutton Lumber Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8 [1986]). Assessment of whether the proffered excuse is reasonable and whether the party has sufficiently demonstrated a meritorious claim is within the sound discretion of the court. (see Bengal House Ltd. v 989 3rd Ave., Inc., 118 A.D.3d 575, 575-576, 988 N.Y.S.2d 586 [1st Dept 2014] citing Di Simone v Good Samaritan Hosp., 100 N.Y.2d 632, 768 N.Y.S.2d 735 [2003]).
Excusable Default
Law office failure, under certain circumstances, may constitute a reasonable excuse for a default. (see CPLR § 2005; Mutual Marine Office, Inc. v Joy Const. Corp., 39 A.D.3d 417, 419, 835 N.Y.S.2d 88 [1st Dept 2007]). However, the mere mention of "law office error" is not enough. (see Onishenko v Ntansah, 145 A.D.3d 910, 911, 43 N.Y.S.3d 504 [2nd Dept 2016]; Ortega v Gisogno & Meyerson, 38 A.D.3d 510, 511, 831 N.Y.S.2d 259 [2nd Dept 2007] ("While CPLR 2005 allows courts to excuse a default due to law office error, it was not the legislature's intent to routinely excuse such defaults.")). Thus, claims of law office failure must be supported by a detailed and credible explanation of the default, rendering conclusory allegations of law office failure insufficient. (see Tri-State Consumer Insurance Company v Hereford Insurance Company, 167 A.D.3d 416, 417, 88 N.Y.S.3d 188 [1st Dept 2018]; Le Monda v City of New York, 159 A.D.3d 470, 2018 NY Slip Op 01546 [1st Dept 2018]; Galaxy General Contracting Corp. v 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept 2012]; Rudd Mechanical Associates, Inc. v ZDG, LLC, 192 A.D.3d 440, 441, 139 N.Y.S.3d 802 [App Div, 1st Dept 2021]).
The affirmation in support here does not set forth a single fact explaining the law office error. Both the affirmation in support and the reply affirmation fail to account for the court's email or for respondent's counsel's emails. There is no discussion of office practices and what led to the non-appearance. Such conclusory allegations of law office error do not constitute a reasonable excuse. (see Onewest Bank, FSB v Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 [2nd Dept 2017]
Neither of petitioner's counsel's affirmations mention the April 11, 2022 court date.
Petitioner's reliance on Rosenberg v Maggio is inapposite. (see 281 A.D.3d 183, 2001 NY Slip Op 01964 [1st Dept 2001]). In Maggio, the defaulting counsel at least offered he had calendared the proceeding under the wrong date in his diary.
Under these circumstances, the court cannot simply reference the preference for deciding cases on the merits. (see Leader v Parkside Group, 174 A.D.3d 420, 421 [1st Dept 2019] (The preference for deciding cases on the merits does not justify vacating a default judgment where the moving party fails to satisfy the two-prong test of showing a reasonable excuse and a meritorious defense)).
Meritorious Claim
Assuming arguendo that petitioner had offered a reasonable excuse for its default, it has not submitted proof of a potentially meritorious claim. (see Gonzalez v Praise the Lord Dental, 79 A.D.3d 550, 912 N.Y.S.2d 402 [1st Dept 2010] (no need to address meritorious claim when party fails to demonstrate reasonable excuse for the default).
The affirmation in support does not utter a single word about the merit of the underlying claim. Even if this court were to consider counsel's reply affirmation, (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 A.D.3d 380, 381, 822 N.Y.S.2d 264 [1st Dept 2006] (a movant is not permitted, in reply, to supply new evidence in support of the application)), counsel's affirmation is without probative value. (see Thelen LLP v Omni Contracting Co., 79 A.D.3d 605, 606, 914 N.Y.S.2d 119 [1st Dept 2010]; Onewest Bank, FSB v Michel, 143 A.D.3d 869, 871, 39 N.Y.S.3d 485 [2d Dept 2016] ; see also Northern Source, LLC v Kousouros, 106 A.D.3d 571, 572, 966 N.Y.S.2d 377 [1st Dept 2013] (affirmation from counsel insufficient to demonstrate meritorious claim because counsel had no first-hand knowledge)).
The court notes that the petition is attorney verified.
Petitioner may not, as a matter of course, simply refer to the pleadings to "demonstrate" its meritorious claim. (see Carroll v Nostra Realty Corp., 54 A.D.3d 623, 625, 864 N.Y.S.2d 210 [1st Dept 2008] (pleadings were self-serving and conclusory); compare Mediavilla v Gurman, 272 A.D.2d 146, 148, 717 N.Y.S.2d 432 [1st Dept 2000] (affidavit of merit accompanies by medical records sufficient); Rosenberg v Maggio, 282 A.D.2d at 184 (affidavit of physician specifying defendant's departure from accepted practice and opining that such departures contributed to plaintiff's injuries); Caso v Manmall, Inc., 68 A.D.3d 470, 471, 894 N.Y.S.2d 374 [1st Dept 2009] (plaintiff's affidavit in support of motion sufficiently detailed to show merit); see also Incorporated Village of Hempstead v Jablonsky, 283 A.D.2d 553, 554, 725 N.Y.S.2d 6 [2nd Dept 2001] (movant must submit supporting facts in evidentiary form sufficient to justify vacating the default)).
In Carroll v Nostra Realty Corp., the plaintiff also submitted an affidavit.
Consequently, petitioner has failed to show either an excusable reason for its default or that it has a meritorious claim against the respondent.
CONCLUSION
Based on the foregoing, petitioner's motion is denied on the merits. As such, the court need not reach respondent's procedural argument.
This constitutes the Decision of the court. It will be posted on NYSCEF.
SO ORDERED,