Pyatigorsky v Derbaremdiker

[*1] Pyatigorsky v Derbaremdiker 2006 NY Slip Op 50718(U) [11 Misc 3d 1086(A)] Decided on April 20, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 2, 2006; it will not be published in the printed Official Reports.

Decided on April 20, 2006
Supreme Court, Kings County

Diana Pyatigorsky, Plaintiff,

against

Alex Derbaremdiker, Defendant.



40308/04



Plaintiff:

Greg C. Gorodetsky, Esq.

Brooklyn NY

Defendant

McBreen & Kopko

Jericho NY

Arthur M. Schack, J.

Plaintiff moves by motion, pursuant to CLPR Rule 5015 (a), to vacate plaintiff's April 26, 2005 default, which resulted in this Court granting defendant's cross-motion to dismiss plaintiff's complaint and denying plaintiff's application for various forms of pendente lite relief. This Court will, for the reasons to follow, grant plaintiff's motion to [*2]the extent of vacating plaintiff's April 26, 2005 default. Plaintiff has demonstrated a reasonable excuse and a meritorious claim. However, the various forms of pendente lite relief in place from March 15, 2005 to the April 26, 2005 default will not be reinstated. If reinstated, it may be impossible for defendant to comply. Further, plaintiff must satisfy this Court, in an evidentiary hearing, of her needs for any future pendente lite relief.

Background

Plaintiff, in her verified complaint [exhibit B of motion], alleges that she and defendant lived together for a number of years as "domestic partners," pursuant to an "express agreement," and that they have a daughter, born in 1997. Defendant's counsel, in her affirmation in opposition, admits that plaintiff is "an ex-girlfriend" of defendant, that the parties lived together for about eight years and had the child, but denies that there was an "express agreement" of "domestic partnership."

Plaintiff seeks, with the termination of their "domestic partnership," a distribution of their mutual property "under the terms of an express agreement between the parties." The purported "express agreement," if it exists in writing, has never been presented to the Court, leading to the conclusion that it is an oral agreement. Plaintiff seeks 50% of various joint bank accounts and mutual funds, alleging that these accounts are joint tenancies of domestic partnership assets. With respect to realty, plaintiff alleges that the parties, as joint tenants, own shares in some two real estate co-operative corporations, with proprietary leases for apartments. One is for Apt. 1J at 1900 Avenue W, Brooklyn, NY 11229, and the other is for Apt 4G at 2900 West 8th Street, Brooklyn, NY 11229. Plaintiff also alleges joint ownership of property in Pike County, Pennsylvania. Troubling to this Court is the allegation that defendant's 2003 adjusted gross income is almost $200,000. Without any evidence or allegations of plaintiff's income, defendant's income, by itself, is grossly in excess of the income eligibility requirements for ownership of the 2900 West 8th Street co-op, in the Luna Park Houses, a "Mitchell-Lama" development.

By an order to show cause, dated February 25, 2005 [exhibit A of motion], the parties appeared in my part on March 15, 2005, to determine inter alia: if defendant's assets should be frozen pendente lite; precluding defendant from selling pendente lite the Pike County property and the Avenue W co-op shares without plaintiff's consent; granting plaintiff exclusive use and occupancy of the Luna Park "marital residence"; and, directing defendant to pay $20,500 in interim counsel fees. On March 15, 2005, by my short-form decision and order [exhibit H of motion], I adjourned the order to show cause to April 26, 2005, granting limited pendente lite relief with respect to restraining defendant from liquidating various assets.

Plaintiff's counsel asserts, in his affirmation in support of the motion to vacate the default, that he appeared in my Part at 10:58 A.M. on April 26, 2005. This was clearly after both calendar calls, at 9:45 A.M. and 10:30 A.M., conducted pursuant to my Part Rules. Further, plaintiff's counsel alleges that he received a copy of my April 26, 2005 [*3]order with a notice of entry [exhibit F of motion], and that I did not sign or initial the order, in violation of CPLR Rule 2219 (a), which states, in relevant part, that "[a]n order

determining a motion made upon supporting papers shall be signed with the judge's signature or initials by the judge who made it." This is false. On April 17, 2006, I personally requisitioned and reviewed the official file for the instant case maintained by the Kings County Clerk. The order entered and on file with the Kings County Clerk is initialed by me and in full compliance with CPLR Rule 2219 (a).

Plaintiff's counsel claims that he was late to Court on April 26, 2006 because he was ill with an abdominal pain associated with gastritis. In support of this he presented a copy of a note from a Dr. Istkovich [exhibit G of motion]. The note is not in admissible form. Counsel then alleges that he "tried to call the judge's chambers, but the call did not come through. So the plaintiff's attorney jumped into the train and despite his severe pain appeared in court to litigate instant matter. Unfortunately the unsigned [actually initialed as noted above] default order was issued may be a few minutes before the plaintiff's attorney appeared in instant part 27, on April 26, 2005, at 10:58 A.M." [sic]. The Court does not fathom why plaintiff's counsel did not call Part 27 early enough on April 26, 2005 to alert my staff or myself to his alleged medical problems.

Plaintiff's counsel, in his affirmation in support of the motion to vacate the default, and plaintiff, in her affidavit in support of the motion to vacate the default, allege that plaintiff has a meritorious action with respect to defendant's violation of their "express agreement" as to the division of domestic partnership properties and the rights of the parties to their share of domestic partnership assets held as joint tenants.

Defendant, in his opposition papers, claims that plaintiff: has not provided a reasonable excuse to vacate the default; lacks a meritorious claim with the failure to present an affidavit of merit; and, failed to establish the ground to reinstate any pendente lite relief.

Discussion

Courts have been very clear in explaining the necessary elements for vacating a default. In Eretz Funding, Ltd. v Shalosh Associates, 266 AD2d 184, 185 (2d Dept 1999), the Court instructed that, "[a] party seeking to be relieved of its default must establish both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Fennell v Mason, 204 AD2d 599)." The Court, in Henry v Kuveke, 9 AD3d 476, 479 (2d Dept 2004), held that "[i]t is axiomatic that a court may vacate a default upon a showing by the movant of both a reasonable excuse for the default and the existence of a meritorious claim (see CPLR 5015 [a] [1]; Katsnelson v ELRAC, Inc., 304 AD2d 619; Matter of Gambardella v Ortov Light., 278 AD2d 494; Parker v City of New York, 272 AD2d 310)." In Roussodimou v Zafiradis, 238 AD2d 568, 568-569 (2d Dept 1997), the Court held that, "[a] party attempting to vacate a default judgment must establish both a reasonable excuse for the default and meritorious defense (see Putney v Pearlman, 203 AD2d 333; Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d [*4]138)." Another variation of the rule is stated in Abrams v City of New York, 13 AD3d 566 (2d Dept 2004), which holds, that:

CPLR 5015 (a) (1) permits a court to vacate a default where the

moving plaintiff demonstrates both a reasonable excuse for the

default and the existence of a meritorious cause of action (see Lopez

v Tierney & Courtney Overhead Door Sales Co., Inc., 8 AD3d 347

[2004]; Beale v Yepes, 309 AD2d 886, 887 [2003]).

See Santiago v New York City Health and Hospitals Corp., 10 AD3d 393; Caputo v Peton, 13 AD3d 474 (2d Dept 2004); Fekete v Camo Skwere, 16 AD3d 544; Gironda v Katzen, 19 AD3d 644 (2d Dept 2005); Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849 (2d Dept 2005); Dessain v Franklin, 25 AD3d 749 (2d Dept 2006); Kurtz v Mitchell, __ AD3d __, 2006 NY Slip Op 02338 (2d Dept March 28, 2006).

As to what is a reasonable excuse for a default, the Appellate Division, Second Department, in Beizer v Funk, 5 AD3d 619, 620 (2004), held that "[it] is generally left to the sound discretion of the Supreme Court to determine what constitutes a reasonable excuse." With the facts as alleged in the instant case, and the lack of any pattern of wilful neglect, this Court finds that the excuse of gastrointestinal illness by plaintiff's counsel for his April 26, 2005 default is reasonable.

Defendant alleges that plaintiff is required to provide an affidavit of merits in her motion to vacate the default, alleging in counsel's affirmation in opposition, at paragraph 36, that "[i]t is well settled in the Second Department that a motion to vacate an order entered on default will not be vacated, if a movant fails to produce an adequate affidavit of merits.' Stewart v Warren, 135 AD2d 585, 586. [2d Dept 1987]." This quotation is taken out of context. The Appellate Division holding, which affirmed a Supreme Court, Westchester County order, struck a verified answer containing only conclusory denials. The Court found that this does not satisfy the need for an affidavit of merit. A plaintiff, seeking to vacate a default judgment, is not required to have an affidavit labeled as an "affidavit of merits," but must present in admissible form facts which demonstrate a meritorious claim.

In the instant action, plaintiff has an affidavit in support of her motion to vacate the default which is not labeled per se as "affidavit of merit," but states clearly her reasons as to why she has a meritorious claim. In Incorporated Village of Hempstead v Jablonsky, 283 AD2d 553, 553-554 (2d Dept 2001), the Court instructed that "the movant must submit supporting facts in evidentiary form sufficient to justify the default." The Court of Appeals, in Fidelity and Deposit Company of Maryland v Arthur Andersen & Co., 60 NY2d 693, 695 (1983), instructed that in motions to vacate defaults, "[s]ufficiency of the affidavit is, however, an issue ordinarily left to the discretion of the lower courts' (Barasch v Minucci, 49 NY2d 594, 599)." In Kumar v Yonkers Contracting Co. Inc., 14 AD3d 493, 494 (2d Dept 2005), the Court held that in seeking to vacate a [*5]default judgment, the "movant must submit supporting facts in evidentiary form."

Plaintiff's affidavit, in the instant action, presents supporting facts which in the discretion of this Court are sufficient for the purpose of alleging a meritorious claim. While the Court has questions with respect to the possible fraudulent ownership of a Mitchell-Lama apartment by the parties, this can be dealt with when the instant action is tried on its merits. The Court, in Beizer v Funk, supra, at 620, articulated that "[w]here, as here, there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interest of justice is best served by permitting the case to be decided on its merits (see Photovision Intl.v Thayer, 235 AD2d 457 [2d Dept 1997]; Matter of Amjamian, 225 AD2d 992 [3d Dept 1996] )."

Plaintiff's default is vacated with this Court finding that there is a reasonable excuse for the April 26, 2005 default and a meritorious claim by plaintiff that can go forward. As the Court in Beizer v Funk, supra, held, justice is served when cases are decided on the merits. In Photovision Intl.v Thayer, supra, the Court instructed that there is a "strong public policy in favor of resolving claims on the merits."

However, I am not reinstating the pendente lite relief granted to plaintiff in my March 15, 2005 decision and order. Reinstatement of prior restraints on liquidation of defendant's assets would be prejudicial to defendant if he has disposed of any assets, subsequent to the dismissal of plaintiff's limited pendente lite relief in my April 25, 2005 default decision and order. If the prior pendente lite restrictions are reinstated, they could very well be the legal equivalent of putting Humpty-Dumpty back together again.

As the instant case goes forward, plaintiff has the burden of proving the existence of her alleged "express agreement" with respect to a domestic partnership with defendant. Unmarried couples living together are free to enter into contracts for personal services, and there is no requirement that their agreements be in writing. Morone v Morone, 50 NY2d 481 (1980). The Court, in Donnell v Stogel, 161 AD2d 93, 98 (2d Dept 1990), observed that "this court is not aware of any statutory or common-law authority in this States which considers cohabitation between unmarried parties illegal." Plaintiff has to prove to the Court's satisfaction, in an evidentiary hearing, that she is entitled to any pendente lite relief, as pendente lite relief is a balancing of the reasonable needs of the moving party and the financial ability of the other party. Beige v Beige, 220 AD2d 636 (2d Dept 1995)

Conclusion

Accordingly, it is

ORDERED, that the first branch of plaintiff's motion, pursuant to CLPR Rule 5015 (a), to vacate plaintiff's default of April 26, 2005 is granted; and it is further

ORDERED, that the second branch of plaintiff's motion, to reinstate the various forms of pendente lite restrictions against defendant in effect from March 15, 2005 to April 26, 2005, is denied.

This constitutes the Decision and Order of the Court. [*6]

E N T E R

___________________________

HON. ARTHUR M. SCHACK

J. S.C.