Educational Resources Inst., Inc. v Lherisson
Annotate this CaseDecided on August 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-2883 Q C.
The Educational Resources Institute, Inc., Respondent,
against
Sobner Lherisson, Appellant.
Appeal from an order of Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 4, 2011. The order denied defendant's motion, in effect, to vacate a prior order dated October 7, 2011, made upon defendant's failure to appear on the return date of his prior motion, and, upon such vacatur, to modify the terms of an income execution.
ORDERED that the order entered November 4, 2011 is affirmed, without costs.
In light of defendant's lengthy history of chronic defaults, his dilatory conduct, and complete disregard for court orders,we conclude that the Civil Court properly exercised its discretion in denying defendant's motion seeking to, among other things, vacate a prior order entered on default. Accordingly, we affirm.
Plaintiff commenced this action to recover over $90,000 due under six promissory notes executed by defendant for student loans. After defendant failed to appear, a default judgment was entered against him on March 15, 2004 in the amount of $96,463.33. On April 5, 2004, the parties entered into a stipulation of settlement staying enforcement of the judgment and setting [*2]forth the payment terms of the judgment.
When defendant defaulted under the stipulation, plaintiff garnished defendant's wages. Defendant filed an order to show cause to vacate the default and, on February 27, 2006, the Civil Court so-ordered a second stipulation, in which defendant agreed to a garnishment of his wages at the rate of $200 per month. Defendant again failed to comply with the terms of the stipulation and, instead, filed for bankruptcy. However, defendant's student loans survived the discharge in bankruptcy, and plaintiff again garnished defendant's wages. On May 26, 2010, defendant filed a second order to show cause, which was denied after defendant failed to appear. On June 7, 2010, defendant filed a third order to show cause, which was denied by a different judge on July 23, 2010.
Defendant subsequently retained counsel and filed a fourth order to show cause, seeking to vacate the default judgment and reinstate the terms of the February 27, 2006 stipulation. Since defendant's papers were improperly served, plaintiff failed to appear and defaulted. The parties subsequently entered into a stipulation vacating plaintiff's default and restoring the matter to the calendar. Upon submission, the Civil Court denied defendant's motion in a decision dated September 20, 2010. Still represented by counsel, defendant filed a fifth order to show cause, seeking the same relief as that sought in his previous two orders to show cause. In denying defendant's motion, the court characterized defendant's pattern of defaults as "intentional," "wilful," and a "transparent attempt to avoid paying student loans." Although the court denied plaintiff's cross motion for sanctions, it "strongly admonished" defendant's counsel not to re-litigate issues that had previously been decided and "not to repeat this type of behavior in [the] future."
Undeterred, defendant, appearing pro se, filed another order to show cause dated October 7, 2011, seeking to vacate the judgment, stop income execution, and restore the case to the calendar. Defendant failed to appear on the motion, and the Civil Court denied the motion on default.
Defendant subsequently moved to vacate the default and, upon vacatur, in effect, modify the income execution. Defendant alleged that he did not appear on the prior order to show cause because of medical reasons and that the 10% garnishment of his wages was excessive. By order entered November 4, 2011, the Civil Court denied the motion, noting that defendant had made numerous prior motions for the same relief, all of which had been denied by other judges of the Civil Court. Despite his protracted history of defaults and the absence of any evidentiary facts to support his self-serving allegations of financial hardship, defendant now appeals and asks this court to give him yet another opportunity to avoid the consequences of his actions. We decline to do so.
To avoid a default in appearing or answering, defendant was required to show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015 [a] [1]; Jackson-Cutler v Long, 2 AD3d 590 [2003]). Defendant failed to do either. Where, as here, "the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable" (State Farm Mut. Auto. Ins. Co. v Missouri, 28 Misc 3d 130[A], 2010 NY Slip Op 51257[U], *1-2 [App Term, 2d, 11th & 13th Jud Dists 2010], citing Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; see also Melo v Pagano, 297 AD2d 717, 719 [2002]). Although defendant provided a doctor's note attributing [*3]his nonappearance to a medical emergency, he failed to explain why he had never notified the court and counsel of his illness. Moreover, defendant's history of habitual defaults renders his claim of illness specious, at best. Since no reasonable excuse exists for defendant's failure to appear on the scheduled motion date, the Civil Court properly denied defendant's motion to vacate the default.
Even assuming that defendant proffered a reasonable excuse for his default, he failed to make a showing of merit — either below or on appeal — to justify vacating the default. Defendant's bald, conclusory allegation that the 10% garnishment is too onerous is patently insufficient to support a showing of merit (see Cabral v Wolf, 22 Misc 3d 131[A], 2009 NY Slip Op 50164[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Stathatos v Ali, 13 Misc 3d 139[A], 2006 NY Slip Op 52232[U] [App Term, 2d & 11th Jud Dists 2006]). Defendant does not dispute the amounts owed under the notes and fails to submit any proof of his income or expenses to substantiate his claim of financial hardship. In the absence of any evidentiary facts to support a showing of merit or a reasonable excuse for the default, the Civil Court acted well within its discretion in denying defendant's motion (see Jackson-Cutler v Long, 2 AD3d at 590).
"[A] default should be treated consistently with what it is, a serious failure to recognize the importance of the orderly disposition of cases" (Basetti v Nour, 287 AD2d 126, 134 [2001]). To permit this defendant, an inveterate defaulter, to escape, yet again, the consequences of his nonappearance, would effectively undermine the interests of finality and judicial economy. Such conduct should not be condoned, especially where defendant, a highly educated state employee, benefitted from the proceeds of the loans he now claims he is unable to pay.
Accordingly, the order entered November 4, 2011 is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 08, 2013
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