Opinion
Index 653238/2018
12-07-2021
MICHAEL DE ZAIO, Plaintiff, v. LEE ROSENBLOOM, NY57 D/B/A PLAZA GALLERY, NEW YORK GALLERY, PLAZA APPRAISAL SERVICES, INC., DOE CORPORATIONS AND/OR ENTITIES Defendant. Motion Seq. No. 004
HON. SHAWN KELLY JUDGE
Unpublished Opinion
MOTION DATE 09/30/2021
DECISION + ORDER ON MOTION
HON. SHAWN KELLY JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
Defendant Lee Rosenbloom moves to vacate the Court's March 12, 2020 order granting Plaintiffs motion for default pursuant to CPLR §5015 and further to dismiss Plaintiffs July 65 2019 Amended Complaint for failure to join necessary parties pursuant to CPLR §321 l(a)(10).
Plaintiff opposes the motion and cross moves for sanctions against both Defendants Rosenbloom and NY57.
Motion to Vacate
Defendant Rosenbloom moves to vacate the default judgment against Rosenbloom based on a reasonable excuse and meritorious defenses. .He claims that as a pro se party he misunderstood his requirement to file a new answer to the amended complaint and it was his understanding that he had a motion pending to dismiss the complaint against him.
Timeliness
Defendant Rosenbloom admits that his motion to vacate is filed about a year and a half after the default judgment was granted. However, he contends that it is not untimely due to the COVID-19 pandemic.
The default judgment was granted on March 12, 2020, by order of Justice Andrew Borrok. (NYSCEF Doc. No. 78). Due to the COVID-19 pandemic, on March 20, 2020, Pursuant to Executive Law Section 29-a, Governor Andrew Cuomo issued Executive Order 202.8, tolling New York's statute of limitations and other procedural deadlines until April 19, .2020. Subsequent Executive Orders further extended the initial toll of the statute of limitations that Governor Cuomo signed at the beginning of the CO VID-19 pandemic to November 3, 2020 (see Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, and 202.67). Defendant Rosenbloom's motion to vacate the default judgment is timely.
There is a strong public policy in this state towards having cases decided on their merits, however a party must first demonstrate it is entitled to vacate its default (Navarro v A. Trenkman Estate, Inc., 279 AD 2d 257, 719 N.Y.S.2d 34 [1st Dept 2000]). A party seeking to vacate a default judgment pursuant to CPLR §5015 and CPLR §317, must demonstrate both a reasonable excuse for the default as well as a meritorious cause of action. A-determination of what is a reasonable excuse for the default is within the discretion of the Court (Crespo v A.D.A. Mgt., 292 A.D.2d 5, 739 N.Y.S.2d 49 [1st Dept 2002]).
Defendant has not demonstrated either a reasonable excuse for the default or the existence of any meritorious defenses. The record is abundantly clear that Defendant was given ample leeway and direction by the court and nonetheless failed to repeatedly appear and failed to file an Answer to the Amended Complaint.
As previously stated by Justice Borrok,
As an initial matter, the court notes that Mr. Rosenbloom does not dispute liability, he does not deny any of the facts concerning the defendants' default in this case, he does not deny that he failed to file an answer to the complaint or retain counsel for NY57 despite having multiple opportunities to do so, or that he failed to appear for the preliminary conference, or that he failed to file an answer to the amended complaint or otherwise appear or move to dismiss. Significantly, he does not even deny that he owes Mr. De Zaio money for the Tiffany Submariner that somehow disappeared; he merely contends that Mr. De Zaio altered the receipt or produced a second receipt and disputes the actual market value of the watch without offering any supporting evidence. (NYSCEF Doc. No. 78).
Accordingly, Defendant's motion to vacate the default judgment is denied and Defendants' motion to dismiss Amended Complaint does not need to be addressed.
Plaintiffs Cross Motion for Sanctions
The remedy of sanctions is to be one reserved for situations of "extreme behavior" (Hunts Point Term. Produce Coop. Ass 'n v New York City Econ. Dev. Corp., 54 A.D.3d 296, 296 [1st Dept 2008]). Indeed, in order to avoid a chilling effect, even arguments "lacking in legal merit" must have something even more "egregious" in order to rise to the level of frivolous conduct warranting sanctions (see Parametric Capital Mgmt., LLC v Lacher, 26 A.D.3d 175, 175 [1st Dept 2006]). Sanctions must "not be imposed in such a manner as to restrict ultimately unpersuasive, yet good-faith, arguments" (Levy v Carol Mgmt. Corp., 260 A.D.2d 27, 35 [1st Dept 1999]). In evaluating frivolousness, a "court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent" (Matter of Kover, 134 A.D.3d 64, 74 [1st Dept 2015]). Plaintiffs cross motion for sanctions is denied.
It is hereby,
ORDERED that defendant's motion to vacate its default herein is denied and the matter shall be set down for an assessment of damages; and it is further
ORDERED that plaintiffs cross motion for sanctions is denied; and it is farther
ORDERED that, upon the filing by the plaintiff with the General Clerk's Office (60 Centre Street, Room 119) of a copy of this order with notice of entry and a note of issue, and the payment of the fee therefor, the Clerk shall place this matter upon the trial calendar for an assessment of damages; and it is further
ORDERED that such filing with the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nvcourts.gov/supctmanh)].