Focus Camera & Video, Inc. v Choice One Digital, Inc.
Annotate this CaseDecided on June 7, 2006
Supreme Court, Kings County
Focus Camera & Video, Inc., Plaintiff,
against
Choice One Digital, Inc., YANIV DROR, and ADAM MEYER, Defendants.
14572/04
Yvonne Lewis, J.
On November 9, 2005, the plaintiff, Focus Camera & Video, Inc., had a default judgment entered against the defendants, Choice Digital, Inc. and Adam Meyer, in the amount of $73,055.64 ($63,438.50, plus statutory interest from March 30, 2004), for ". . .monies due and owing to the plaintiff for camera and electronic equipment sold to the [said] defendants, which the defendants had neglected and refused to pay without justification or cause." Said default judgment had been predicated on the non-appearance of the defendants, and the fact that some nine checks, on behalf of the defendants, in payment of said supplies had all "bounced or [been] written against uncollected funds." In addition, the said defendants had, by order of Judge Silverman of this court, been precluded from offering evidence at trial due to their repeated failures to have responded to discovery demands and appear for Examinations Before Trial.
The defendant, Adam Meyer, has now moved this court by Order to Show Cause (1) for a temporary restraining order to stay entry and enforcement of said default judgment as against him, (2) to vacate said default judgment as against him, (3) to restore the case to the active calender for a hearing on his cross-motion that had been asserted against the plaintiff's motion for summary judgment which was granted on default, and (4) for an order directing defendant Meyer's former attorney to turn over his file which he has withheld with no valid explanation therefor. Counsel for defendant Meyer asserts that he had failed to file his cross-motion and appear on the default date of October 28, 2005 as a result of having been ordered to commence jury selection on an unrelated Bronx Supreme Court matter the previous day. In addition, a per diem attorney that he had engaged for that purpose failed to pick up the papers from his office and/or to appear on his behalf. Furthermore, counsel for defendant Meyer insists that he has a meritorious defense in this matter inasmuch as he did not personally guarantee the corporate defendant's debt.
The plaintiff, in its affirmation in opposition, opines that the defendant's moving papers are facially insufficient inasmuch as he has not set forth therein a meritorious defense affidavit with his request for vacatur of the subject default judgment. In addition, the plaintiff reminds this court that the defendants' blatant disregard of previous court orders already resulted in their preclusion to offer evidence at trial. Furthermore, plaintiff asserts that it should be awarded attorney's fees since "[t]hroughout this entire litigation the defendants have embarked on a pattern of willful and contumacious behavior in an attempt to delay the prosecution of this [*2]matter and have failed to comply with one [o]rder of this [c]ourt."
CPLR 5015 (a ) 1. provides that 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 excusable default, if such motion is made within one year after the 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. The Appellate Division, Second Department, in the matter of Ahmad v. Aniolowiski, ___ NYS2d ___ , 2005 WL 1086227, 2006 NY slip Op. 03035, aptly summarized the attendant case law in the context of the preceding statutory provision; to wit, "[a] strong public policy exists which favors the disposition of matters on their merits (see Bunch v. Dollar Budget, 12 AD3d 391, 783 NYS2d 829). A party seeking to vacate an order entered upon his or her default is required to demonstrate both a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see CPLR 5051[a][1]; Hageman v. Home Depot U.S.A., 25 AD3d 760, 808 NYS2d 763; Zrake v. New York City Dept. of Educ., 17 AD3d 603, 793 NYS2d 151). The determination of whether to or not to vacate a default in answering is generally left to the sound discretion of the court (see Hegarty v. Ballee, 18 AD3d 706, 795 NYS2d 747). While it is generally within the discretion of the court to determine what constitutes a reasonable excuse, reversal is warranted if that discretion is improvidently exercised (see Zrake v. New York City Dept. of Educ., supra ; Flexro, Ltd. V. Korn, 9 AD3d 445, 780 NYS2d 184; Roussodimou v. Zafiriadis, 238 AD2d 568, 657 NYS2d 66). In Ahmad v. Aniolowiski, supra , the Appellate Division, Second Department found that the defendant therein had made ". . .a good faith, albeit unsuccessful, attempt to timely answer the summons and complaint and to respond to the motion. [thereupon, finding that] [t]he Supreme court should have considered the absence of any evidence that the defendant's default was intentional, made in bad faith, or with an intent to abandon the action (see Dye v. Columbia, 280 AD2d 513, 720 NYS2d 196; Cadle Co. II v. Becker, 261 AD2d 201, 689 NYS2d 506). Further, a review of the defendant's affidavit and the documents submitted on the motion demonstrate a potentially meritorious defense to the breach of contract action (see Henry v. Kuveke, 9 AD3d 476, 781 NYS2d 114). Finally, the plaintiff has neither alleged nor established that he would be prejudiced by vacating the default and hearing the matter on the merits (see Hyde Park Motor Company v. Sucato, 24 AD3d 724, 808 NYS2d 703; Warshaw v. Carlis Realty Corp., 111 AD2d 919, 490 NYS2d 816)."
The case law also clearly states that "[t]he opponent of a motion for summary judgment must come forward with proof in evidentiary form, such as an affidavit by one with personal knowledge. An affirmation of an attorney, without personal knowledge will not suffice and should be entirely disregarded (see O'Hara v. O'Hara, 85 AD2d 669, 445 NYS2d 201, citing Marine Midland Bank v. Hall, 74 AD2d 729, 425 NYS2d 693). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice. (O'Hara v. O'Hara, supra , citing Steingart Assoc., Inc. v. Sandler, 28 AD2d 801, 280 NYS2d 1012; Capelin Assoc. v. Globe, Mfg. Corp., 34 NY2d 338, 357 NYS2d 478; 313 NE2d 776)."
In the matter sub judice, the plaintiff has failed to assert, much less establish any
resultant prejudice in the event of vacatur. In fact, the contrary may be true. For if the defendant's attorney's representation is correct, then the defendant had no personal liability that [*3]would have entitled the plaintiff to a judgment as to him in the first place. However, the problem herein for the defense is two fold. First, the defendant's failure to have submitted an affidavit by him or some other person with personal knowledge of the fact that he had no personal liability, or any documentary proof to that effect is fatal. Although defendant Meyer's attorney's dual assertion that he had failed to file his cross-motion and appear on the default date of October 28, 2005 as a result of having been ordered to commence jury selection on an unrelated Bronx Supreme Court matter the previous day, coupled with the fact that a per diem attorney that he had engaged for that purpose failed to pick up the papers from his office and/or to appear on his behalf certainly constitute an excusable neglect, the second requirement of a meritorious defense has not been legally established. The plain fact is that his lawyer's affirmation to that effect was asserted with no indication of personal knowledge or documentary proof, is purely conclusory, and therefore will not suffice and must be entirely disregarded. Second, this court has not lost sight of the fact that even if it could have vacated the default, there is an existing order in the record which has neither been set aside nor any request made therefor that precludes the defendant from offering any evidence at trial due to his repeated failures to have responded to discovery demands and appear for Examinations Before Trial. Accordingly, the defendant Adam Meyer's order to show cause to this court (1) for a temporary restraining order to stay entry and enforcement of said default judgment as against him, (2) to vacate said default judgment as against him, and, (3) to restore the case to the active calender for a hearing on his cross-motion that had been asserted against the plaintiff's motion for summary judgment which was granted on default is denied in its entirety. His fourth request for an order directing that his former attorney turn over his file which he has withheld with no valid explanation therefor is also denied as moot. This constitutes the decision and Order of this Court.
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