Opinion
Index No. 504865/2023
12-13-2024
Andrii Meleshkov, Plaintiff, v. Oleg Sulyma, Signature Falada, LLC a/k/a Falada Lounge, Defendants.
Greg C. Gorodetsky, Brooklyn, for plaintiff.
Unpublished Opinion
Greg C. Gorodetsky, Brooklyn, for plaintiff.
HON. AARON D. MASLOW, Justice of the Supreme Court of the State of New York
The following numbered papers filed on NYSCEF were used on this motion: Document Nos. 24-34.
Upon the foregoing papers, having heard oral argument , and due deliberation having been had, the within motion is determined as follows.
Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc.2d 335 [Sup Ct, Albany County 1997]).
This is a motion by Plaintiff Andreii Meleshkov ("Plaintiff") seeking a default judgment against Defendants in the amount of $2,000,000. The underlying action alleges that on April 25, 2022, Defendant Oleg Sulyma ("Sulyma) intentionally caused physical injury to Plaintiff by means of a dangerous instrument and disfigured Plaintiff's face and neck while in the course of attempting to murder Plaintiff. Plaintiff alleges that Defendant Signature Falada, LLC a/a/k Falada Lounge ("Falada") breached its duty to protect Plaintiff.
More specifically, the complaint herein alleges that Plaintiff and his friends were at the restaurant at Falada on April 25, 2022; that Plaintiff and his friends were singing Russian songs in karaoke. Sulyma took umbrage that Plaintiff and his friends were singing in Russian. Plaintiff and his friends responded that they were from Ukraine. Sulyma did not believe them and demanded that they translate the words from Russian to Ukrainian. Plaintiff tried to pay the bill and leave but Sulyma poured two bottles of beer on Plaintiff, smashed a bottle, and attacked Plaintiff with it, while threatening, "I am getting ready to kill you." As a result, Plaintiff sustained multiple wounds requiring hospital treatment. Sulyma was arrested by the police and charged criminally. Plaintiff alleged further that Falada failed to intercept Sulyma. There were no bouncers or other security guards. Plaintiff alleged causes of action asserting assault and battery and intentional infliction of emotional distress against Sulyma. Plaintiff alleged causes of action asserting breach of duty of care and negligent infliction of emotional distress against Falada.
At oral argument, the Court raised an issue as to compliance with two provisions of IAS Part 2 Rules. Part II (Motions & Special Proceedings), Subpart B (Papers), § 27, provides:
§ 27. Additional modes of service of papers on certain parties. Additionally, if there are parties who have not appeared in the action and against whom a default judgment has not been entered, if there are self-represented parties, or if counsel is seeking to be relieved from representing a party, the papers - whether in support of or in opposition to the motion - shall be served on them additionally as follows: (a) by first-class mail (with postmarked certificate of mailing) to all known residence and business addresses, (b) by certified mail, return receipt requested to all known residence and business addresses, and (c) to known email addresses, regardless of said papers having been served already otherwise (e.g., a filing in NYSCEF). (https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Dec. 13, 2024].)
This rule is designed to ensure that parties who have not yet appeared in the action and would not otherwise receive a set of motion papers which could affect them be sent not just one copy, but at least one other - using different mailing modalities. In the context of a defendant who has not answered the complaint, the rule is designed to impress upon the said defendant that a motion against his interests is being made - that a default judgment is being sought. With more than one mailing being sent, it is more likely that at least one will reach the party, and if the nonappearing party receives more than one, the seriousness of the relief of a default judgment possibly being entered might impel the said party to rectify the situation and respond to the motion. Deciding a motion on the merits based on the parties' appearing and presenting arguments is favored over a determination resulting from a default (see Mineroff v R.H. Macy's & Co., 97 A.D.2d 535, 536 [2d Dept 1983]).
Plaintiff did not serve Defendants in accordance with this rule. The affirmation of service of Plaintiff's counsel attests to mailing the motion papers to Defendants via United Parcel Service. There was no mailing by first-class mail (with postmarked certificate of mailing) and by certified mail, return receipt requested.
The other provision of IAS Part 2's Rules which the Court called attention to at oral argument was Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), § 2. It provides:
§ 2. Notifying certain parties of motion calendar date. If there are parties who have not appeared in the action and against whom a default judgment has not been entered, if there are self-represented parties, or if counsel is seeking to be relieved from representing a party, counsel for the movant shall notify them of the original motion calendar date and any adjourned motion calendar date as follows: (a) by first-class mail (with postmarked certificate of mailing) to all known residence and business addresses, (b) by certified mail, return receipt requested to all known residence and business addresses, and (c) to known email addresses, regardless of the motion papers having been previously served. Said notice shall include a summary of the relief sought, the Court's address and courtroom number, and a copy of these Part Rules. Proof of service of such notice shall be filed. This is in addition to such other service as may have been effectuated in compliance with statute or general court rules (e.g., a filing in NYSCEF) or in an order to show cause. (https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Sept. 9, 2024].)
The purpose for this rule is to inform a non-appearing party of the location and date when a motion will be heard. A nonappearing defendant obviously has not registered for receipt of notices from the court system's electronic platform for notification of upcoming dates of motions and conferences. Even if a nonappearing party received a copy of the motion papers in the mail, the return date listed in the notice of motion will not be the actual date for oral argument. The Motion Support Office in Supreme Court, Kings County, never calendars a motion for the return date set forth by the movant in the notice of motion. It routinely reschedules it to a later date. Unless the nonappearing party is notified of the date for oral argument he has no way to know when the motion will be argued. In the context of a motion for a default judgment, if the nonappearing, defaulting defendant has not submitted papers in opposition to the motion for a default judgment, the date for oral argument before the court on the motion is the last opportunity for the party to appear and offer some explanation for why he never answered the complaint. The opportunity is lost when the defaulting defendant is not apprised of the date for oral argument.
The purpose underlying the mandate to include a copy of the Part Rules is that the recipient of the motion papers should be informed as to IAS Part 2's standards for any responsive papers and to apprise them of logistical details governing appearances at motion calendars and how to communicate with the Part if necessary.
Nothing in the record evidences that Plaintiff notified Defendants that the within motion for a default judgment was to be heard on, at Courtroom 18.36 at the Supreme Court Courthouse, 320 Jay Street, Brooklyn, New York. There was no way for said Defendants to know that this motion against them was scheduled for then.
A trial court possesses the right to enforce the rules governing practice and procedure before it (e.g. Anuchina v Marine Transp. Logistics, Inc., 216 A.D.3d 1126 [2d Dept 2023] [motion relating to disclosure must be accompanied by moving counsel's affirmation attesting to having conferred with opposing counsel in good faith effort to resolve issues]; McGee v Putnam County Assistant Dist. Attorney David M. Bishop, 192 A.D.3d 1446 [3d Dept 2021] [memorandum of law page limit]; Hornsby v Cathedral Parkway Apts. Corp., 179 A.D.3d 584 [1st Dept 2020] [affirmation page limit]; Basie v Wiggs, 173 A.D.3d 1127 [2d Dept 2019] [Matrimonial Part rules]; Appleyard v Tigges, 171 A.D.3d 534 [1st Dept 2019] [60-day summary judgment motion deadline]; Shah v RBC Capital Mkts. LLC, 115 A.D.3d 444 [1st Dept 2014] [all outstanding discovery matters to be raised at compliance conferences]; Biscone v Jetblue Airways Corp., 103 A.D.3d 158 [2d Dept 2012] [provide working copies of electronically-filed documents]; Maddus v Bowman, 12 A.D.2d 626 [2d Dept 1960] [Statement of Readiness Rule requiring plaintiff to furnish authorization to obtain hospital records]; Thompson v Doe, 83 Misc.3d 1246 [A], 2024 NY Slip Op 50930[U] [Sup Ct, Kings County 2024] [adjournment stipulation late and not conforming to rule's content requirements; submission of referenced electronically-filed documents without being submitted as exhibits to motion papers; motion papers to be served on nonappearing parties via first-class mail with postmarked certificate of mailing and certified mail return receipt requested; nonappearing party to be apprised of motion date and location]; Shmerelzon v Gravesend Mgt., Inc., 80 Misc.3d 1233 [A], 2023 NY Slip Op 51155[U] [Sup Ct, Kings County 2023] [adjournment requests must contain specified data and be submitted three days in advance]; Wade v Khadka, 80 Misc.3d 1222 [A], 2023 NY Slip Op 51058[U] [Sup Ct, Kings County 2023] [identify party seeking adjournment and good cause reason]; Brick&Mortar LLC v Momo Sushi Inc., 79 Misc.3d 1239 [A], 2023 NY Slip Op 50838[U] [Sup Ct, Kings County 2023] [submission of referenced electronically-filed documents as exhibits to motion papers]; Stipa Sprecase v Tenreiro, 2023 WL 3972435 [Sup Ct, NY County 2023] [motions to reargue or renew be made by order to show cause]; Latorre v Rahman, 2022 NY Slip Op 32044[U] [Sup Ct, NY County 2022] [no motions allowed until conference is held]; Bedingfield v Dairymade Farms, Inc., 46 Misc.2d 146, 148 [Sup Ct, Suffolk County 1965] [rule requiring statement of readiness be filed with note of issue "is consistent with the inherent power of the Court to control its business"]; Scully v Jefferson Truck Renting Corp., 43 Misc.2d 48 [Sup Ct, Kings County 1964] [statement of readiness be filed with note of issue]; cf. Crawford v Liz Claiborne, Inc., 11 N.Y.3d 810 [2008] [IAS Part rule not in effect when preliminary conference order issued, resulting in application of Local Rules]). "[I]t is within the court's inherent and statutory power to control the order of its business, and to so conduct its business as to safeguard the rights of all litigants, to preclude unfair procedural advantage to any party, and to prevent needless disruption of orderly court procedures" (Maddaud v Bowman, 12 A.D.2d 626, 626 [2d Dept 1960]).
This Court elects to enforce the above two provisions of its Rules which are of significant importance in the context of a motion for a default against nonappearing defendants. In light of moving Plaintiff's failure to comply with these provisions, the Court will not presently enter a default judgment against Defendants despite the seriousness of the allegations.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for a default judgment is ADJOURNED to March 7, 2025. Within 14 days following entry of this order, Plaintiff shall (1) re-serve his motion papers in accordance with IAS Part 2 Rules' Part II, Subpart B, § 27; (2) comply fully with IAS Part 2 Rules' Part II, Subpart C, § 2; and (3) serve a copy of this order in the same manner as prescribed in IAS Part 2 Rules' Part II, Subpart C, § 2.