Coons v BFS Retail & Commercial Operations, LLC

[*1] Coons v BFS Retail & Commercial Operations, LLC 2006 NY Slip Op 51315(U) [12 Misc 3d 1179(A)] Decided on July 6, 2006 Just Ct DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2006
Just Ct

Douglas Coons, Plaintiff,

against

BFS Retail & Commercial Operations, LLC d/b/a Firestone Tire & Service Center, Defendant.



06050318

Thomas J. DiSalvo, J.

The plaintiff sued the defendant for $3,000.00 in the Small Claims

part of Webster Town Court. The plaintiff alleged that he took his car in for an oil change. He

further alleged that the defendant failed to put enough oil in his car's engine, which caused his

engine to seize up and be ruined. The matter was set down to be heard on a regular small

claims calender of the court on May 22, 2006 at 6:00 P.M. The case was called at 7:25 P.M.

Although the plaintiff was present, there was no appearance by the defendant. The plaintiff

was sworn in and testified to the damages alleged in his written claim. In addition, the plaintiff

submitted a written estimate from "In-Spec Automotive" of 1301 Ridge Road East, Rochester,

New York 14621, which indicated that the cost to replace the plaintiff's engine would be

$2,214.00. It is noted that said estimate states that "Appears engine seized due to lack of oil,

no signs of leaking or burning of oil". The court's file indicates that the defendant, which does

business at 901 Ridge Road, Webster, New York 14580, was given proper notice of the

proceeding by both regular and certified mail. The court's file also includes a green certified

mail post card, which indicates that the certified mail of the notice of this action was received by [*2]

the defendant on April 26, 2006. The Court decided in favor of the plaintiff and awarded a judgment of $2,224.00 plus the filing fee of $15.00 for a total of $2,229.00.

The defendant does not contest that it had received notice of the date and time of the

hearing. However, in a letter, dated May 30, 2006, the defendant, requested that the matter be

reopened. The defendant contends that "... our local store manager got confused about the court

date and therefore wasn't presented (sic) for this hearing".

The defendant subsequently filed a document entitled "Appeal of Firestone Tire &

Service Center", which was not dated. However, it was unclear as to whether same was in fact

an appeal or a motion to vacate the judgment. The court clerk inquired of the defendant as to

the relief it was requesting. The defendant indicated that it desired to make a motion to vacate

the judgment. It then withdrew the filing of the document, and instead filed an undated

"Motion to Vacate the Judgement", which is the subject of this decision. Again, the defendant

alleges in its motion that "The representative of Firestone was confused as to the date of the

original hearing; consequently he did not appear on the proper date."

Conclusion

The court may informally consider a motion to vacate a judgment in a Small Claims

Action. Village, Town, and District Courts in New York (2004) at page 11-37. This was

certainly an informal motion, since there was no Notice of Motion with a sworn affidavit

attached filed herein. Nor was an affidavit of service filed with the court, indicating service of

the motion had taken place on the plaintiff. The motion was pro se, in that it was submitted by

an employee of the corporation, who was not an attorney.

In any event, when "... a party does not appear at the time of the hearing, the default may [*3]

be opened if the party establishes a meritorious defense and gives a reasonable excuse for

the non-appearance. Gray v. B.R. Trucking Co., 59 NY2d 966, 466 N.Y.S.2d 320, 453 N.E.2d

549 (1983)." Ibid. In this case the excuse offered is that "the store manager got confused about

the court date". This court determines that same is not a reasonable excuse from a going

business, that has the wherewithal to employ a number of individuals and could have hired a

lawyer to represent it in this litigation. Nor did the defendant raise a meritorious defense to

the actual claim of the defendant. Therefore, the motion of the defendant to vacate the

judgement rendered in favor of the plaintiff and against the defendant is hereby denied.

Lastly, based on the request of the defendant that the proper name of the defendant be

stated in this action, the title of this action is hereby amended to list the defendant as "BFS

Retail & Commercial Operations, LLC d/b/a Firestone Tire & Service Center." An amended

judgment will be issued to reflect the proper name of the defendant.

This constitutes the decision and order of this court.

Dated: Webster, New York

July 6, 2006

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice