Opinion
15268/10.
April 29, 2011.
Alexander Potruch, Esq., Garden City, New York.
Don Weiner, Dix Hills, New York.
Notice of Motion, Affs. Exs...................................1 Notice of Cross-Motion, Affs. Exs.............................2 Affirmation in Opposition and Reply............................3 Memorandum of Law...............................................4
Upon the foregoing papers, it is ordered that the motion by plaintiff, Potruch Daab, LLC, for default judgment, pursuant to CPLR § 3215, is granted to the extent directed below. The cross-motion by defendant, Don Weiner, for leave to file a late answer, pursuant to CPLR § 3012(d), and to dismiss plaintiff's complaint, pursuant to CPLR § 3211, is denied.
The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court.
This is an action brought by plaintiff to collect legal fees allegedly due and owing to it from the defendant arising from the plaintiff's representation of the defendant in an underlying matrimonial/custody matter that was pending in Suffolk County Supreme Court. Plaintiff alleges that it rendered legal services to defendant pursuant to a retainer agreement dated October 8, 2007. Plaintiff law firm represented the defendant from October 7, 2007 through April 2009, which was through the trial of the underlying custody action.
On August 23, 2010, plaintiff law firm served the within summons and complaint upon the defendant, Don Weiner, by "nail and mail" service. In support of same, the plaintiff submits the affidavit of service for the summons and complaint, which indicates that on August 23, 2010, the summons and complaint was affixed to the door of defendant's residence and that on August 27, 2010, a copy of same was mailed to the defendant by First Class Mail. In its reply, plaintiff also submits photographs, allegedly of the defendant's home, with the summons and complaint affixed to the door of said home, as well as a copy of an envelope addressed to the defendant (with postmark dated August 27, 2010). At the time of plaintiff's filing of the instant motion for default judgment, the defendant had not answered or otherwise appeared in the action. Accordingly, plaintiff argues that it is entitled to default judgment against the defendant in the amount of $112,131.65.
Plaintiff further contends that it sent monthly bills to the defendant on a regular and continuing basis shortly after the date of its retention. Plaintiff argues that defendant never objected to the specifics of the charges contained within the monthly bills. Plaintiff further contends that in December 2008, the plaintiff law firm filed a cross-motion on defendant's behalf in the underlying matrimonial/custody action which requested that defendant's wife be ordered to pay defendant's legal fees (due to Potruch Daub, LLC) in the sum of $77,176. Plaintiff contends that defendant submitted an affidavit of net worth in support of said application, in which Don Weiner stated that he owed his attorneys $77,176.
Plaintiff argues herein that defendant has refused to pay the bills for legal services rendered to him and that the amount of $ 112,131.65 is due and owing to plaintiff. Accordingly, plaintiff contends that it is entitled to judgment on its Third Cause of Action for an account stated. In order to prove a cause of action for an account stated, the plaintiff must prove that an account was rendered showing a balance and that the receiving party failed within a reasonable time to dispute the account. ( Morrison Cohen Singer Weinstein, LLP v. Ackerman, 280 A.D.2d 355, 720 N.Y.S.2d 486 (1st Dept. 2001)).
Defendant opposes plaintiff's motion within his cross-motion, which also requests additional time to serve his answer and a dismissal of plaintiff's action. Defendant admits in his affidavit that he received the summons and complaint that were affixed to his door on August 23, 2010, but contends that a copy of same was never subsequently mailed to his home. He also disputes the prior attempts at personal service, attesting that although he may not have been home during one of the attempts at service, he was home during the other attempts and yet was never served on those dates. He further contends that plaintiff's summons and complaint is procedurally defective, as the copy served upon him did not contain the County Clerk's stamp and did not have the index number written upon the complaint. The Court notes that the summons submitted by the defendant (which was annexed to the complaint) contained the index number for the action. Defendant further contends that the retainer agreement was not attached to his copy of the complaint and that two dates were left blank in two paragraphs of the complaint. As such, defendant argues that the summons and complaint were procedurally defective and should be dismissed.
In opposition to plaintiff's motion for default judgment, defendant attests that he "NEVER believed Plaintiff's Summons and Complaint to be real." Because he did not believe the summons and complaint to be real, he never answered the plaintiff's complaint. In addition, defendant opposes plaintiff's calculations of the amounts owed to it and also attests that he objected to the bills both orally and in writing, beginning in October 2009. Defendant has failed, however, to submit any proof of same within his cross-motion.
Plaintiff's motion for default judgment is granted and defendant's cross-motion to dismiss plaintiff's complaint and for leave to serve a late answer is denied. Contrary to defendant's contentions, a dismissal of the plaintiff's complaint for "procedural defects" is not warranted herein. The complaint sufficiently sets forth the causes of action alleged and there has been no demonstration that the defendant was substantially prejudiced by the way in which the allegations are set forth. CPLR § 3026 provides that pleadings are to be liberally construed and that defects shall be ignored if a substantial right of a party is not prejudiced. ( See, World Wide Adjustment Bureau v. Edward S. Gordon, Co., Inc., 111 A.D.2d 98, 489 N.Y.S.2d 231 (1st Dept. 1985). Additionally, CPLR § 3013 states that statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or a series of occurrences, intended to be proved and the material elements of each cause of action or defense. ( See, Fox v. 18-05 215th Street Owners, Inc., 143 A.D.2d 804, 533 N.Y.S.2d 347 (2d Dept. 1989)).
Further, "a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer." ( Moriano v. Provident New York Bancorp, 71 A.D.3d 747, 899 N.Y.S.2d 246 (2d Dept. 2010), quoting, Lipp v. Port Authority of New York and New Jersey, 34 A.D.3d 649, 824 N.Y.S.2d 671 (2d Dept. 2006); See also CPLR § 5015). In order to vacate a default, the movant must establish both a reasonable excuse for the default and a meritorious defense to the action. ( See, Putney v. Pearlman, 203 D.D.2d 333, 612 N.Y.S.2d 919 (2d Dept. 1994); Sciavetta v. McKeon, 190 A.D.2d 724, 593 N.Y.S.2d 468 (2d Dept. 1993); Shaw v. Shaw, 97 A.D.2d 403, 467 N.Y.S.2d 231 (2d Dept. 1983)). The determination of the sufficiency of the excuse and the statement of merits rests within the sound discretion of the court. ( Goldman v. Cotter, 10 A.D.2d 289, 781 N.Y.S.2d 28 (1st Dept. 2004)).
In the instant action, the defendant has failed to demonstrate a reasonable excuse for his default in timely answering the plaintiff's complaint. Defendant, Don Weiner, admits in his affidavit in support of the cross-motion that he received a copy of the summons and complaint affixed to his door on August 23, 2010 and offers no reasonable excuse for his default in answering, aside from attesting that he never believed that the complaint was "real" or "anything more than a scare tactic" by the plaintiff. Additionally, defendant fails to submit evidence in support of his assertions that he contested the bills sent to him by the plaintiff law firm or that the accounting of same is incorrect. ( See, Weiss v. Croce, 167 A.D.2d 465, 561 N.Y.S.2d 927 (2d Dept. 1990) (conclusory allegations are insufficient to establish that a meritorious defense exists); Peacock v. Kalikow, 239 A.D.2d 188, 658 N.Y.S.2d 7 (1st Dept. 1997) (the affidavit must make sufficient facutal allegations, more than merely conclusory or vague assertions); see also, National Recovery Systems v. Weiss, 226 A.D.2d 29, 641 N.Y.S.2d 296) (1st Dept. 1996)).
Accordingly, plaintiff request for a default judgment against the defendant is granted. Plaintiff shall serve a Notice of Inquest, together with a copy this order and the Note of Issue upon the defendant, by certified mail, return receipt requested, and shall serve copies of same together with receipt of payment, upon the Calendar Clerk of this court, no later than twenty (20) days prior to the date of inquest.
Upon proof of the Note of Issue filing, the Clerk of the Calendar Control Part ("CCP"), shall place this matter on the CCP Trial Calendar of Nassau County Supreme Court on June 22, 2011, at 9:30 A. M. for an assessment of damages.
The Justice presiding in CCP may refer this matter to a Justice, Special Referee or Judicial Hearing Officer as he or she may determine.
The failure to file a note of issue or appear as directed above may be deemed an abandonment of the claims giving rise to the inquest.
Defendants remaining requests for an order referring plaintiff to the bar's disciplinary committee and referring this matter to a fee arbitration committee are denied. Lastly, regarding defendant's request for the Court to schedule a traverse hearing in this matter, the Court finds that there is no need for a traverse hearing where the defendant has admitted receipt of the summons and complaint affixed to the door of his residence.
This shall constitute the Decision and Order of this Court.