R.U.M.C. Realty v JCF Assoc., LLC
Annotate this CaseDecided on September 26, 2005
Supreme Court, Kings County
R.U.M.C. REALTY, Plaintiff,
against
JCF ASSOCIATES, LLC, Defendant
7336/04
Francois A. Rivera, J.
By order to show cause filed on January 18, 2005, plaintiff moves pursuant to CPLR §5015 to vacate a judgment dismissing its complaint and cross-motion. Defendant opposes the motion.
Plaintiff is a corporation organized and existing under the laws of the State of New York. On March5, 2004, plaintiff commenced this action by filing a summons with notice. By notice of appearance filed March 29, 2004, defendant demanded a copy of the complaint. Plaintiff complied and provided the defendant with a complaint verified by Marvin Usdin, plaintiff's vice-president and counsel, and alleging twenty one allegations of fact in support of two causes of action. The first action seeks punitive damages for defendant's alleged interference with plaintiff's right to purchase a building. The second seeks damages for defendant's removal of plaintiff's property.
On May 21, 2004, defendant filed a motion seeking to dismiss plaintiff's complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action. On June 1, 2004, plaintiff filed a cross-motion opposing defendant's motion and seeking leave to file a notice of pendency. On November 19, 2004, the motion and cross-motion were scheduled for oral argument in Part 52 of this court. By order of this court dated December 22, 2004, plaintiff's cross-motion was denied and defendant's motion to dismiss the complaint was granted on default. On January 21, 2005, defendant filed a copy of this order with notice of entry.
By order to show cause filed December 1, 2004, plaintiff moved to vacate the order dismissing plaintiff's complaint based on its default in appearing on November 19, 2004. The order to show cause filed December 1, 2004, did not include copies of the original motion papers, namely, a copy of defendant's motion to dismiss and plaintiff's cross-motion in opposition. By decision and order dated January 14, 2005, this court denied plaintiff's application based on the failure to include the original motion papers. The court, however, granted plaintiff leave to renew the motion and to cure the procedural deficiency. On February 28, 2005, defendant filed a copy of this order with notice of entry. [*2]
By order to show cause dated January 18, 2005, plaintiff again moved to vacate the order dismissing plaintiff's complaint based on the default in appearance on November 19, 2004. This time, the motion papers included the affirmation of plaintiff's counsel, a copy of this court's aforementioned order of January 14, 2005, a copy of plaintiff's verified complaint, a copy of the previously denied order to show cause, dated December 1, 2004, with accompanying exhibits; a copy of this court's order dismissing plaintiff's complaint; a copy of the original motion by the defendant to dismiss the complaint and the plaintiff's cross-motion in opposition; and a decision and order of Justice Bunyon involving the defendant and another plaintiff.
Plaintiff alleged that, through inadvertence, it mistook the return date of the defendant's motion to dismiss and its own cross-motion to be November 24, instead of November 19, 2004, and thus missed the date for oral argument.
CPLR § 5015(a)(1) provides the method for requesting relief from a judgment or order on motion and provides: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry.
Pursuant to CPLR§ 5015, a moving party seeking to vacate a default judgment must demonstrate both an excusable default and a meritorious defense (Kaufman & Satran LLP v. Sidbern Estates, Inc., 4 AD3d 454 [2nd Dept. 2004]). It is within the sound discretion of the Court to determine what constitutes a reasonable excuse as well as a meritorious defense (Beizer v. Funk, 5 AD3d 619 [2nd Dept 2004]).
CPLR§ 2005 provides, in pertinent part, that the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. The court is mindful of the strong public policy favoring resolution of disputes on the merits (Eckna v. Kesselman, 11 AD3d 507 [2nd Dept. 2004]).
The plaintiff's plausible explanation of mistaking the return date of the motion demonstrates a reasonable excuse for their default based on law office failure. The plaintiff must now present a meritorious defense (Parker v. City of New York, 272 AD2d 310 [2nd Dept. 2000]).
In order to demonstrate a meritorious defense, a party must submit an affidavit from an individual with knowledge of the facts (Fidelity and Deposit Co. Maryland v. Arthur Anderson & Co., 60 NY2d 693 [1983]. Sufficiency of an affidavit of merit is a matter generally left to the discretion of the trial court (See Fidelity and Deposit Co. of Maryland v. Arthur Andersen & Co., supra. 60 NY2d at 695). A pleading verified by an attorney rather than an individual with knowledge of the facts does not constitute a competent affidavit of the merits (Blum v. Paine Hacking Corp., 1 AD3d 199 [1st Dept. 2003]). The affirmation of an attorney which does not contain evidentiary facts from his or her personal knowledge is insufficient to establish a meritorious defense (Studebaker-Worthington Leasing Corp.v. Mitchell Titus & Co., 238 AD2d 576, 577 [2nd Dept. 1997]). However, a verified pleading, in lieu of an affidavit of merit, may constitute a sufficient statement of merit for purposes of vacating a default (See CPLR §3020(d), [*3]CPLR§105(u), Celnick v. Freitag 242 AD2d 436 [1st Dept 1997]). The crucial distinction is whether the affirmation or affidavit of counsel alleges evidentiary facts from the attorney's personal knowledge. If it does, it may suffice. If it does not, it may not.
In the case at bar, plaintiff's order to show cause has annexed the underlying complaint which is verified by the vice-president and counsel of the plaintiff corporation. As a pleading of a domestic corporation verified by an officer, with personal knowledge of the facts alleged therein, it may serve as an affidavit of merit. The allegations of fact in the verified complaint state a cause of action for tortious interference with a contract. The elements of a tortious interference claim are: the existence of a valid contract between the plaintiff and a third party; the defendant's knowledge of that contract; the defendant's intentional procurement of the third party's breach of the contract without justification; and an actual breach of the contract and damages resulting from such breach (Bradbury v. Woller Cope-Schwarz, 20 AD3d 657-659 [3rd Dept 2005]). Plaintiff has, therefore, demonstrated both an excusable default and a meritorious defense.
Plaintiff's application to vacate this court's order dismissing plaintiff's complaint and cross-motion on default is granted and the motion and cross motion are restored to the calendar. The parties are directed to contact the clerk of part 52 to reschedule the oral argument on the motion and cross motion.
The foregoing constitutes the decision and order of the court.
______________________
J.S.C.
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