Opinion
12313N- 12313NA Index No. 154566/17 Case No. 2019-4811(1)
11-10-2020
Peter LANDUSCO, Plaintiff-Appellant, v. OPEN LOOP NYC et al., Defendants-Respondents
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant. Aguilar Bentley LLC, New York (Anne Burton Walsh of counsel), for respondents.
Krentsel & Guzman, LLP, New York (Marcia K. Raicus of counsel), for appellant.
Aguilar Bentley LLC, New York (Anne Burton Walsh of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered June 17, 2019, which, inter alia, denied plaintiff's motion to vacate an order granting defendant Michael Johnson's motion for a default judgment as to liability on his counterclaims, and order, same court and Justice, entered on or about May 8, 2019, which, inter alia, granted defendants' motion to vacate the note of issue and for sanctions in the amount of $200 for fees and costs incurred in connection with the filing of the motion, unanimously affirmed, without costs.
Plaintiff failed to timely answer defendant Johnson's counterclaims, or to oppose the motion for a default judgment, and his counsel's perfunctory excuse of law office failure, based on a purported reassignment of the case within the law firm, was not reasonable, particularly given defendants' showing that plaintiff was represented by the same lawyer at the firm throughout the action (see Fernandez v. Santos, 161 A.D.3d 473, 76 N.Y.S.3d 147 [1st Dept. 2018] ). Since plaintiff never proffered a reasonable excuse for his default, we need not consider the merits of his defense to the counterclaims (see id. ; Tribeca Tech. Solutions, Inc. v. Goldberg, 110 A.D.3d 536, 537, 973 N.Y.S.2d 168 [1st Dept. 2013] ).
Plaintiff's certificate of readiness violated 22 NYCRR 202.21 because it wrongly indicated that he had submitted to physical examinations, that the reports regarding those examinations had been exchanged, and that all discovery was complete (see Gomes v. Valentine Realty LLC, 32 A.D.3d 699, 822 N.Y.S.2d 2 [1st Dept. 2006] ; Cromer v. Yellen, 268 A.D.2d 381, 702 N.Y.S.2d 277 [1st Dept. 2000] ). Plaintiff's counsel refused to withdraw the note of issue when requested, which resulted in unnecessary motion practice. Accordingly, we find that the court providently exercised its discretion in imposing financial sanctions on plaintiff for frivolous conduct (see 22 NYCRR 130–1.1 [c][2]; [3]; Clark v. Allen & Overy, LLP, 159 A.D.3d 478, 73 N.Y.S.3d 144 [1st Dept. 2018], lv dismissed in part, denied in part 32 N.Y.3d 943, 84 N.Y.S.3d 78, 108 N.E.3d 1024 [2018], cert denied ––– U.S. ––––, 139 S. Ct. 1199, 203 L.Ed.2d 227 [2019] ; Marrero v. New York City Tr. Auth., 150 A.D.3d 1097, 52 N.Y.S.3d 652 [2d Dept. 2017] ).