Opinion
15-1765
07-18-2016
Jeannette Meyers, Plaintiff, v. Grunblatt Psychology and Counseling Offices, PC and Andrea Grunblatt, Defendants.
Bernard Weinreb, Esq. Counsel for Plaintiff, movant 2 Perlman Drive—Suite 301 Spring Valley, New York 10977 Joseph J. Ranni, Esq. Counsel for Defendants Ranni Law Firm 148 North Main Street Florida, New York 10921
Bernard Weinreb, Esq. Counsel for Plaintiff, movant 2 Perlman Drive—Suite 301 Spring Valley, New York 10977 Joseph J. Ranni, Esq. Counsel for Defendants Ranni Law Firm 148 North Main Street Florida, New York 10921 Lisa M. Fisher, J.
Plaintiff commenced this action on June 2, 2015 via summons and complaint, seeking to recover damages for Defendants' failure to pay wages under the New York Labor Law and for a breach of contract. Plaintiff served Defendants on June 12, 2015. No answer was served within the time required by the CPLR.
Plaintiff's counsel alleges that Defendants' counsel consulted and/or contacted Plaintiff's counsel several times. There is no evidence in the record that Defendants' counsel contacted Plaintiff's counsel, other than two e-mails from Plaintiff's counsel to Defendants' counsel with no response. The first time is an email dated January 28, 2016, wherein Plaintiff's counsel noted discussions between counsel and requested documents and an answer be served in the matter. A follow-up e-mail was sent a month later from Plaintiff's counsel to Defendant's counsel warning of the imminent motion for default. No response appears to have been received.
Thereafter, Plaintiff moved for a default judgment on or about March 22, 2016. The return date was adjourned per the request of Defendants' counsel, and then again by Plaintiff's counsel.
Defendants opposed the motion by attaching a proposed answer to a one page attorney affirmation. Defendants also filed an affidavit of merit purporting there to be several meritorious defenses.
Plaintiff submits a reply, arguing that Defendants' untimely answer should be rejected by the Court and the default motion granted because there is no reasonable excuse for the delay or default.
Indeed, "there is a strong judicial preference for determination of issues upon the merits" (CBA Properties, LLC v Global Airlines Servs., Inc., 108 AD3d 967, 968 [3d Dept 2013]). However, as Plaintiff correctly points out, "the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR § 3012 [d] [emphasis added]). "The determination of what constitutes a reasonable excuse for the delay lies within the sound discretion of the motion court" (Amodeo v Gellert and Gartararo, P.C., 26 AD3d 705, 706 [3d Dept 2006]).
Here, Defendants' do not cross-move for leave to submit or compel acceptance of a late answer. Defendants' opposition fails to even attempt articulation of a reasonable excuse for the delay, which warrants the granting of Plaintiff's motion for a default judgment. (See HSBC Bank USA, N.A. v Ashley, 104 AD3d 975, 976 [3d Dept 2013] ["Supreme Court did not abuse its discretion in denying defendants' motion for leave to serve a late answer given the absence of a reasonable excuse for the delay."].) Submission of an allegedly meritorious defense, with nothing more, does not satisfy CPLR § 3012 (d) nor this Court.
While Plaintiff is entitled to a default judgment, the Court notes that it is not satisfied with the proof offered by Plaintiff to establish her alleged damages. First, Plaintiff's Verified Complaint alleges $7,140.00 in damages but she claims such damages are higher in her motion papers. Plaintiff cannot now change her ad damnum clause in a motion for a default judgment, as it eviscerates the notice principles well-established by New York law and is contrary to CPLR § 3215 (a). (See CPLR § 3215 [a] ["The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or the notice served pursuant to subdivision (b) of rule 305, plus costs and interests."] [emphasis added].) Plaintiff must either move to amend her Verified Complaint, opening the possibility for Defendants to submit a timely answer, or proceed with the inquest premised on the number articulated in the Verified Complaint.
Second, Plaintiff has cited no legal authority for liquidated damages and is directed to proffer such. A conclusory statement of entitlement does not satisfy the Court. Nor has Plaintiff provided any calculation how she arrived at the $7,140.00 figure alleged in the complaint. This Court will not rubberstamp a default judgment and Plaintiff will only be entitled to the damages she can competently prove at inquest.
Third, "attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule[,]" and Plaintiff has not provided either an agreement or cited to a statute or court rule permitting such. (See Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]; see Halstead v Fournia, 134 AD2d 1269, 1271 [3d Dept 2015].) Plaintiff is entitled to the costs of pursuing the default judgment pursuant to CPLR § 3215 (a). However, CPLR § 3215 (a) does not afford attorneys' fees. The Court will entertain a future request for attorneys' fees with either citation to an agreement, statutory authority, or court rule at the time of inquest.
Fourth, notwithstanding the third point, Plaintiff's counsel's has further not established that $400.00 an hour is a reasonable fee for an uncontested, default matter in Ulster County. "As a general rule, the reasonable hourly rate is based on the customary fee charged for similar services by lawyers in the community with like experience and comparable reputation to those by whom the prevailing party was represented" (Daimlerchrysler Corp. v Karman, 5 Misc 3d 567, 568 [Supt Ct, Albany County 2004, Cannizzaro, J.]). Recently, the Federal District Court for the Northern District of New York surveyed reasonable rates in the Third Department and Northern District, finding none to be higher than $300.00 an hour for contested, federal matters. (See Seidenfuss v Diversified Adjustment Servs., Inc., 2016 WL 1047383 [NDNY, March 15, 2016, Hurd, J.].) Additionally, the Court further notes Plaintiff's counsel's inaccurately reflects 25.25 hours of work performed wherein the tallied figure only equates to 24.25 hours of work performed.
Therefore, the Court will schedule a conference in this matter to discuss the scheduling, instructions, and further logistics of the inquest. The Court will also explore the possibility of resolution without the necessity for further motion practice or hearings.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Plaintiff's motion for a default judgment is GRANTED, and all Defendants are deemed in default; and it is further
ORDERED that Defendants' proposed answer is deemed untimely and without reasonable excuse, and therefore stricken.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED. DATED: July 18, 2016 Catskill, New York HON. LISA M. FISHER SUPREME COURT JUSTICE Papers Considered: 1) Plaintiff's notice of motion for default judgment, dated March 22, 2016; affirmation of Bernard Weinreb in support of motion for default judgment, with annexed exhibits, dated March 22, 2016; affidavit of Jeannette Meyers in support of her motion for default judgment, dated March 21, 2016; supplemental affirmation of Bernard Weinreb in support of motion for default judgment—additional notice given, dated April 15, 2016; 2) Affirmation of opposition to motion to default, of Joseph J. Ranni, Esq., with annexed exhibit, dated April 29, 2016; affidavit of Andrea Grunblatt, dated April 21, 2016; and 3) Affirmation of Bernard Weinreb in further support of motion for default judgment, with annexed exhibits, dated May 13, 2016.