Burstein v Port Auth. of N.Y. & N.J.
Annotate this CaseDecided on December 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-2015 K C. NO. 2005-2015 K C
Norman Burstein, Respondent,
against
The Port Authority of New York and New Jersey, Appellant.
Appeal from orders of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 5, 2005 and November 17, 2005. The order
entered August 5, 2005 denied defendant's motion to vacate a default judgment. The order entered November 17, 2005 denied defendant's motion to renew the prior motion.
Orders affirmed without costs.
In this action for personal injuries and property damage stemming from a motor vehicle accident, the court below denied a motion by defendant seeking to vacate a default judgment and a second motion seeking leave to renew. The decision as to what
constitutes a reasonable excuse for a default is left to the sound discretion of the court hearing the motion (Thompson v Steuben Realty Corp., 18 AD3d 864 [2005]), and that discretion will not be disturbed where support for its exercise may be found in the record (see Coulter v Town of Highlands, 26 AD3d 456 [2006]). In the case at bar, it cannot be said that the court improvidently exercised its discretion in denying defendant's motions for relief from the default judgment, since the record supports a finding that defendant's counsel appeared on the initial conference date but then left the courtroom and returned neither for the second call of the calendar nor on the adjourned date at which defendant was held in default.
Weston Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum. [*2]
Golia, J., concurs in part and dissents in part and votes to reverse the order denying renewal, grant renewal and upon renewal grant appellant's motion to vacate its default in the following memorandum:
The lower court entered a default judgment as against the defendant upon a finding that the defendant did not appear at the call of the May 26, 2005 calendar having previously been calendared for the first time on April 7, 2005. The court records seem to indicate that the defendant appeared in court on the first day the case was calendered but was not present at the call of the calendar and the matter was subsequently adjourned. Counsel for the defendant asserts that he was unaware that
the subject case had appeared on the court' s calendar either on the first date or on the adjourned date.
Defendant's counsel submitted his own affirmation as well as an affidavit from the scheduling clerk in his office stating that they were unaware of either date. The court below, however, chose to rely on the court clerk's notes and elected to enter a default.
The majority of this Court holds that the lower court had properly exercised its discretion.
I am in full agreement with the majority that a court should be given a broad range of discretion and that that discretion should not ordinarily be disturbed. Nevertheless, in circumstances such as these, where counsel submits an affirmation asserting that he was not aware of this matter being on the calendar, then I believe the court was in error in totally discounting that affirmation. This is especially true where the judge was merely relying on the court clerk's notes and not upon his own knowledge or upon a sworn statement of his clerk.
Indeed during oral argument before the Appellate Term, the pro se plaintiff stated that he did not know if a representative of the defendant was present. He stated that he saw someone leaving the courtroom who gave him a "discerning look" and that
a clerk told him that such person was from the Port Authority. The pro se plaintiff further indicated that he did not hear that person say anything to the court.
It therefore cannot be said with any degree of certainty that defendant's counsel was actually there and should have been aware of the adjourned date, and it certainly cannot be said that counsel wilfully or intentionally elected to disregard this matter.
It should be noted that there would be no prejudice to this pro se plaintiff if the Appellate Term were to reverse inasmuch as this was only the second time that the case appeared on the calendar. I further note that there was ongoing communication between the pro se plaintiff and the defendant regarding discovery on this less than six-month-old complaint.
I would prefer to find, under the facts and circumstances involved herein, and in view of the many cases which hold that it is better to resolve a matter on the merits, that the lower court's sanction of dismissal was unduly harsh.
Decision Date: December 28, 2006
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