Opinion
No. SC-000830-23/NA
11-30-2023
Alistair Sims, Claimant, v. Lance Frantz Regis A/K/A LANCE REGIS A/K/A LANCE F. REGIS A/K/A FRANTZ L. REGISTRE A/K/A REGISTRE FRANTZ A/K/A VANCE REGIS A/K/A REGIS LANCE A/K/A REGIS L. FRANTZ, Defendant(s).
Alistair Sims; Lance Regis
Unpublished Opinion
Alistair Sims; Lance Regis
Michael A. Montesano, J.
Papers Considered:
Notice of Motion to Dismiss Plaintiff's Notice of Motion to Amend Caption and Motion to Vacate Inquest Ruling and Order and to Vacate the subsequent Unlawful and Unjust Fraudulent Judgment Pursuant to NYSCPL Article 50 Section 5015(1)(2)(3) and Dismissing the Plaintiff Complaint in its entirety or Restoring Civil Action to Calendar for a Trial 1
Defendant's Reply Affidavit in Support of Notice of Motion to Amend Caption and Motion to Vacate Inquest Ruling and Order and to Vacate the subsequent Unlawful and Unjust Fraudulent Judgment Pursuant to NYSCPL Article 50 Section 5015(1)(2)(3) and New York State Civil Practice Law Rules Article 32 Section 3216 and Dismissing the Plaintiff Complaint in its entirety or Restoring Civil Action to Calendar for a Trial 2
Defendant moves, by way of Notice of Motion, filed on October 19, 2023, for an order pursuant to CPLR 5015 (a)(1)(2) and (3), vacating the default judgment entered against him on August 16, 2023, restoring the case to the court's calendar and dismissing the complaint. Defendant also filed a subsequent motion on November 15, 2023, again seeking an order pursuant to CPLR 5015 (a)(1)(2) and (3), and dismissing the complaint pursuant to CPLR 3216.
Notably, a prior application was made by defendant, by way of an order to show cause, on August 29, 2023 seeking the same relief as requested herein. The court declined to sign defendant's application. Thereafter, on September 5, 2023, defendant sought review of his ex-parte order, by the Appellate Term, Second Judicial Department, pursuant to CPLR 5704(b). The Appellate Term court denied defendant's application. On October 6, 2023, defendant filed a second order to show cause in this court. The court declined to sign his second application. Defendant's unopposed motions are determined as provided herein.
On or about June 2, 2023, plaintiff commenced this small claims action seeking to recover from defendant the sum of $5,000.00 for breach of contract/warranty and loss of personal property. The case appeared on the court's calendar on July 12, 2023. Both parties appeared. Plaintiff requested an adjournment. The court granted his application and adjourned the case to August 9, 2023. On August 9, 2023 the case was adjourned to August 16, 2023 for an inquest. Defendant did not appear. On August 16, 2023 an inquest was held. After inquest, the court awarded Plaintiff the sum of $5,000 plus costs, disbursements and interest. On August 16, 2023, a judgment was entered against defendant in the amount of $5,128.70.
A defendant seeking to vacate a default under CPLR 5015(a)(1) "must demonstrate a reasonable excuse for its delay in appearing and answering the complaint [or motion] and a meritorious defense to the action" (Moore v Day, 55 A.D.3d 803, 804 [2d Dept 2008] citing Eugene DiLorenzo, Inc. v A.C. Dutton Lumber Co., 67 N.Y.2d 138, 141[1986]; see DeStaso v Bottiglieri, 52 A.D.3d 453 [2d Dept 2008]; Mut. Mar. Off., Inc. v Joy Constr. Corp., 39 A.D.3d 417 [1st Dept 2007]; Friedman v Crystal Ball Group, Inc., 28 A.D.3d 514 [2d Dept 2006]).
In the case at bar, defendant contends that he has an excusable default for his failure to appear. Defendant states that on August 9, 2023, an emergency situation arose at one his residential properties which prevented him from appearing in court. With respect to the August 16, 2023 date, defendant avers that he did not receive notification of the court date. Notwithstanding the above, defendant must also show a meritorious defense to the action. After a review of defendant's motions, affidavits and supporting documentation, the court finds defendant failed to demonstrate a meritorious defense to the small claims action. As such, the prong of defendant's motion which seeks vacatur of the judgment pursuant to CPLR 5015(a)(1) is denied.
A party seeking to vacate a judgment pursuant to CPLR 5015(a)(2) must establish that the evidence could not have been discovered earlier through the exercise of due diligence (see CPLR 5015[a][2]; Roslyn Sav. Bank v Kline, 17 A.D.3d 441 [2d Dept 2006]; Kleet Lbr. Co., Inc. v Saw Horse Remodelers, Inc., 13 A.D.3d 414, 415 [2d Dept 2004]; Feldstein v Rounick, 295 A.D.2d 398, 399-400 [2d Dept 2002]; Zaccaria v Russell, 288 A.D.2d 468 [2d Dept 2001]; Contractors Cas. & Sur. Co. v 535 Broadhollow Realty, 276 A.D.2d 738 [2d Dept 2000]; Exclusive Envelope Corp. v Tal-Spons Corp., 187 A.D.2d 555, 555-556 [2d Dept 1992]) and the newly discovered evidence "would probably have produced a different result" (CPLR 5015[a][2]; see Federated Conservationists of Westchester County v. County of Westchester, 4 A.D.3d 326 [2d Dept 2004]).
Here, the "new" evidence is not actually new as it had been known to defendant at the time of his earlier motions in each instance. Nonetheless, defendant failed to demonstrate that the newly discovered evidence "would probably have produced a different result" (CPLR 5015[a][2]; see Federated Conservationists of Westchester County v County of Westchester, 4 A.D.3d at 327). Therefore, the branch of defendant's motion seeking to vacate the judgment pursuant to CPLR 5015(a)(2) is denied.
CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of "fraud, misrepresentation, or other misconduct of an adverse party" (see Summitbridge Credit Invs., LLC v Wallace, 128 A.D.3d 676, 677-678 [2d Dept 2015]).
In this case, defendant failed to demonstrate that plaintiff's conduct, in securing the judgment, rose to the level of fraud, misrepresentation, or other misconduct (see Bank of NY v Stradford, 55 A.D.3d 765, 765-766 [2d Dept 2008]; Aames Capital Corp. v Davidsohn, 24 A.D.3d 474 at 475 [2d Dept 2005]). Accordingly, the branch of defendant's motion seeking to vacate the judgment pursuant to CPLR 5015(a)(3) is denied.
In light of the foregoing determination, the court need not reach defendant's remaining contentions.
Accordingly, defendant's motions are denied in their entirety.
This constitutes the decision and order of the court.