Opinion
Index No. 2022-895
06-11-2024
Rhonda Rosenheck, Plaintiff, v. Cousins Restoration, Inc.; RYAN VAN BROCKLEN, Individually; and TIFFANY VAN BROCKLEN, Individually, Defendants.
Unpublished Opinion
Thomas D. Buchanan, J.
Thomas D. Buchanan, Supreme Court Justice
By Order to Show Cause issued on December 12, 2023, defendant Tiffany Van Brocklen ("Defendant") has moved to vacate a default judgment ordered by this Court on November 14, 2022. Defendant moves to vacate the default judgment and for leave to defend this action pursuant to CPLR 317 & 5015(a)(1).
At the outset, Defendant's assertion that Plaintiff failed to give her "additional notice" required by CPLR 3215(g)(3)(i) must be addressed. Defendant asserts entitlement to additional notice because this case alleges breach of contract. However, the face of the statute states that such notice is required when the action at issue is for "nonpayment of a contractual obligation." The Complaint in this action does not allege nonpayment but instead seeks damages for nonperformance of construction services called for in the contract. Defendant's argument is misplaced (Preferred Mutual Ins. Co. v. DiLorenzo, 183 A.D.3d 1091 [3d Dept 2020]).
Turning to the particular statutes invoked in Defendant's Order to Show Cause, under CPLR 317, a defendant must move to defend an action within one year of obtaining knowledge of it and must have a meritorious defense. CPLR 317 provides in relevant part:
A person served with a summons other than by personal delivery to him or his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.
According to the Affidavit of Service, Defendant was served via substituted service on June 10, 2022, by delivery of the Notice of Electronic Filing, Summons and Verified Complaint to her grandmother-in-law, a person of suitable age and discretion, on June 10, 2022, followed by mailing of a copy of each document on June 13, 2022. The Affidavit of Service was filed on June 13, 2022, completing service upon Defendant.
In support of the motion to vacate, Defendant submitted an affidavit in which she states that she "... did not become aware of a default judgment against me, my husband, or Cousins until August 9, 2023, when my brother received a restraining notice." She further affied, "Prior to learning of the default judgment, I never saw a copy of the summons and complaint in this action."
On February 27, 2023, this Court held a traverse hearing, during which Defendant testified that her affidavit was inaccurate and that she had indeed received and reviewed a copy of the Summons in this case sometime prior to a telephone message she left with Plaintiff's counsel on September 14, 2022. This testimony is directly at odds with her previously submitted affidavit. When this Court inquired, "Well, how long did it take you between when you put your hand on the envelope and called Mr. Toporowski [on September 14, 2022]?" Defendant responded, "... I can't give you a timeline. I had gotten the information, I had given it to my husband..." (tr at 38). In addition, the text messages submitted as exhibits and Defendant's own testimony at the traverse hearing make it clear that Defendant was active in attempting to resolve the instant dispute with Plaintiff prior to June of 2022.
Thus, it is the conclusion of this Court that Defendant received notice of this summons and complaint prior to September of 2022. Applying the legal principle of falsus in uno, falsus omnibus, the Court finds that any testimony of Defendant that she did not receive notice of the within action within a sufficient time to defend it is not credible. Her testimony was evasive, halting, unclear and inconsistent. Defendant has failed to demonstrate that she did not personally receive notice of the summons in time to defend.
The motion to vacate pursuant to CPLR 5015(a)(1) requires both a reasonable excuse for the default and a meritorious defense. It is clear that well before September of 2022 Defendant received actual notice of the Summons and Complaint, reviewed portions of those documents, and had discussions with her husband concerning the matter. This was confirmed during her testimony at the traverse hearing, as well as in a voice mail left on Mr. Toporowski's phone in September of 2022. The Court finds that Defendant has not supplied a reasonable excuse for her default.
Further, the Court notes that Defendant's affidavit denying that this is a meritorious action against her is conclusory and unsupported by documentary evidence. No corporate documents were submitted demonstrating that she is not a shareholder officer or director, or that she did not work with or for Cousins Restoration, or that she never contracted with Plaintiff. Given Defendant's prior false statement, under oath, to this Court, the Court declines to credit her conclusory denials in the January 19, 2024, reply affidavit. The Court finds that Defendant neither supplied a reasonable excuse for her default, nor demonstrated with convincing evidence a meritorious defense.
Therefore, in consideration of the foregoing, it is hereby, ORDERED, that Defendant's motion to vacate her default under CPLR 317 & 5015(a)(1) is denied; and it is further
ORDERED, that Plaintiff is awarded costs on this motion.
Papers considered:
Order to Show Cause; Affidavit of John F. Harwick, Esq., with annexed exhibit; Affidavit of Tiffany Van Brocklen, Affidavit of Ryan Van Brocklen; Affidavit in Opposition of Rhonda Rosenheck, with annexed exhibits; Affirmation in Opposition of Matthew A. Toporowski, Esq., with annexed exhibits; Transcript of traverse hearing; Defendant's Post-Trial Memorandum, with annexed exhibit; Plaintiff's Post-Trial Memorandum, with annexed exhibit.