Nold v Gaetano

[*1] Nold v Gaetano 2009 NY Slip Op 50117(U) [22 Misc 3d 1114(A)] Decided on January 21, 2009 White Plains City Ct Friia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 21, 2009
White Plains City Ct

Janet Nold, RENO RIVERTOWN REALTY CORP., and RENO RIVERTOWN REALTY CORP.D/B/A RENO PREMIER PROPERTIES, Plaintiffs,

against

Matthew Gaetano, Defendant.



CV 1547/05



Mark A. Rubeo, Esq.

Attorney for Plaintiffs

30 State Street, Suite G1

Ossining, New York 10562

Finkel Goldstein Rosenbloom & Nash, LLP

Attorneys for Defendant

26 Broadway, Suite 711

New York, New York 10004

Jo Ann Friia, J.

Background

This contract action was commenced on July 21, 2005 seeking to recover a brokerage commission under a written agreement for the sale of residential property. On August 12, 2005, defendant served his answer with affirmative defenses/counterclaims. On May 13, 2008, notice was mailed to counsel for the parties which directed them to appear for a preliminary conference on June 26, 2008 at 9:00 a.m. (22 NYCRR § 210.10). An adjournment request was granted on consent of the parties and with the approval of the Court. A second notice was mailed on October 16, 2008 which directed counsel for the parties to appear for a preliminary conference on December 11, 2008 at 9:00 a.m. Both notices mailed to counsel indicated the following:

"Attorneys familiar with the case and authorized to act are required to attend. If parties are appearing pro se they must be present.

If the plaintiff or plaintiff's attorney do not appear and the defendant or defendant's attorney do appear, the Court may [*2]dismiss the action.

If the defendant or defendant's attorney do not appear and the plaintiff or plaintiff's attorney do appear, the Court may grant judgment by default or order an inquest.

No adjournment request will be considered unless supported by an affirmation of actual engagement filed in accordance with Part 125 of the Rules of the Chief Administrator (22 NYCRR § 125.1)."

On December 11, 2008, defendant failed to appear at the preliminary conference and a judgment by default was granted in favor of plaintiff (22 NYCRR § 210.14). Defendant now moves to vacate that judgment. In support of the motion, the affirmant, an attorney "handling the matter," alleges the following: "... a partner in this firm [name omitted] was scheduled to appear for the preliminary conference." Further, that "[o]n December 1, 2008, after the close of business [the partner] received an emergency telephone call wherein he was required to fly to Miami, Florida at approximately 6:00 a.m. on December 11, 2008. [The partner] contacted me at 8:00 a.m. on December 11, 2008 and asked me to contact plaintiff's attorney [name omitted] to inform him of the circumstances and to request an adjournment." The "partner" has not filed an affidavit in support of the motion and the moving papers are devoid of specific factual detail explaining the emergency nature of the telephone call described above.[FN1]

Discussion

While the disposition of a case on the merits is favored, that preference does not relieve a party seeking to vacate a default judgment of the two-pronged burden of showing a reasonable excuse for the default and a meritorious defense (Goncalves v. Stuyvesant Dev. Assoc., 232 AD2d 275 [1st Dept. 1996]; Dimitratos v. City of New York, 180 AD2d 414 [1st Dept. 1992]). Where, as here, a party seeks to vacate a default [*3]judgment entered pursuant to 22 NYCRR § 210.14, this Court has previously held that the above two-pronged burden applies (see Jeganathan v. O'Reilly, 195 Misc 2d 197 [City Court of White Plains][Friia, J.][in order to vacate a default judgment granted under 22 NYCRR § 210.14, the movant must demonstrate a reasonable excuse for the default and a meritorious claim or defense]).

In proffering a reasonable excuse for the default, a moving party cannot rely upon conclusory allegations (Jackson-Cutler v. Long, 2 AD3d 590 [2d Dept. 2003]) and the affidavit of merit must illustrate personal knowledge of detailed evidentiary facts constituting a valid defense (Domenikos v. Miranda, 255 AD2d 481 [2d Dept. 1998]; Whitbeck v. Erin's Isle, Inc., 109 AD2d 1032 [3d Dept. 1985]). Although CPLR 2005 empowers the court to exercise its discretion in determining motions to vacate defaults emanating from law office failure, the legislation did not intend the routine vacatur of such defaults. Where the default remains unexplained, the moving party is not entitled to vacatur of its default, regardless of the meritorious nature of its defense (Montalvo v. Nel Taxi Corp., 114 AD2d 494 [2d Dept. 1985]).

As illustrated above, the partner scheduled to appear for the court conference on December 11, 2008, received his emergency telephone call on December 1, 2008, ten (10) days before the scheduled time to appear. More disturbing is the fact that the partner waited until 8:00 a.m. on December 11, 2008 (one [1] hour before the scheduled conference) to request his associate to contact plaintiff's attorney and seek an adjournment. Additionally, no justification is offered as to why the partner has failed to submit an affidavit explaining the emergency nature of his business in Florida and detailing the specific facts surrounding his subsequent default in appearing for the court conference.

It is well settled that an affidavit from an attorney without personal knowledge of the events surrounding law office failure is insufficient to establish a reasonable excuse for the default (Incorporated Village of Hempstead v. Jablonsky, 283 AD2d 553 [2d Dept. 2001]). In this case, the affirmant has no personal knowledge regarding the circumstances surrounding the partner's emergency telephone call and subsequent trip to Florida. Nor does the affirmant have personal knowledge with respect to the partner's inordinate delay in seeking an adjournment of the conference. In the absence of an affidavit from an individual with personal knowledge of the material facts giving rise to the default, the Court finds that defendant has failed to present a reasonable excuse for his nonappearance (see Brehm v. Patton, 55 AD3d 1362 [4th Dept. 2008][although the [*4]determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court, the movant must submit supporting facts in evidentiary form sufficient to justify the default; defendant failed to provide an affidavit from the attorney or otherwise explain why it could not obtain an affidavit from that attorney, thus defendant presented a vague claim of law office failure, unsupported by any evidence from someone with personal knowledge of the events surrounding the default]; compare Empire Chevrolet Sales Corp. v. Spallone, 304 AD2d 708 [2d Dept. 2003][affidavit of plaintiff's attorney, who had personal knowledge of the facts regarding his failure to appear at a conference, was sufficient to establish a reasonable excuse for the default]).

Assuming, arguendo, that the Court was to consider the allegations proffered in support of law office failure, it would nonetheless conclude that the proof is insufficient to sustain defendant's burden of establishing a reasonable excuse for the default.

In order to establish a claim of law office failure, the affidavit must be from an attorney with personal knowledge and must provide detailed and corroborated facts in support thereof

(Solomon v. Ramlall, 18 AD3d 461 [2d Dept. 2005][motion to vacate a default denied where plaintiff's excuse of law office failure was undetailed and uncorroborated]). Conclusory and unsubstantiated allegations are insufficient (Juarbe v. City of New York, 303 AD2d 462 [2d Dept. 2003][although law of failure may constitute a reasonable excuse under certain circumstances, the explanation offered was conclusory and devoid of any detailed factual allegations]; Eretz Funding v. Shalosh Associates, 266 AD2d 184 [2d Dept. 1999][defendant's vague and unsubstantiated excuse of law office failure rejected];Cabral v. Wolf, 20 Misc 3d 138[A][App. Term 2d & 11th Jud. Dists. 2008][bald and conclusory allegations of law office failure are insufficient];

Escobar v. Koeppel Volkswagen, Inc., 10 Misc 3d 127[A][App. Term 2d & 11th Jud. Dists. 2005][counsel must submit supporting facts in evidentiary form sufficient to justify the default via an affirmation containing a detailed explanation of the oversights]).

In support of the motion, the only excuse offered for the partners nonappearance is an emergency telephone call on December 1, 2008, which resulted in his need to be in Florida on the date and time of the court conference. This excuse lacks the requisite detail and factual explanation which are required on an application to vacate based upon a claim of law office failure (see Escobar v. Koeppel Volkswagen, Inc., supra). [*5]

In view of the lack of a plausible, reasonable excuse for the default, the determination of whether defendant has demonstrated a meritorious defense is not relevant (Star Industries, Inc. v. Innovative Beverages, Inc., 2008 NY Slip Op. 08318 [2d Dept. 2008]; Citibank, N.A. v. Cresson, 19 Misc 3d 140 [A] [App. Term 9th & 10th Jud. Dists. 2008]; Agway, Inc. v. Chichester, 259 AD2d 880 [3d Dept. 1999]). Nonetheless, it should be noted that the only evidence offered in support of a meritorious defense comes from counsel, an individual with no personal knowledge of the facts asserted therein. Accordingly, counsel's affirmation is of no probative value (Studebaker-Worthington Leasing Corp. v. Mitchell Titus & Co., 238 AD2d 576 [2d Dept. 1997][affirmation of an attorney without personal knowledge of the facts has no substantive probative value as to a showing of a meritorious defense];Garcia v. Battista, 53 AD3d 1068 [4th Dept. 2008][even assuming, arguendo, that defendant established a reasonable excuse for the default based on law office failure, denial of motion was appropriate based on defendant's failure to set forth facts from an individual with personal knowledge sufficient to demonstrate a meritorious defense]).

Next, while a verified answer may be accepted in lieu of an affidavit of merit (CPLR § 105 [u]), the defendant's answer, which was verified only by his attorney who has no personal knowledge of the facts of the case, is insufficient to establish the existence of a meritorious defense (Pampalone v. Giant Building Maintenance, Inc., 17 AD3d 556 [2d Dept. 2005]). Furthermore, even if the answer was verified by the defendant, and not his attorney, it contains nothing more than conclusory allegations which are insufficient to raise a meritorious defense (see e.g. Palisades Collection, LLC v. Staley, 17 Misc 3d 131[A][App. Term 2d & 11th Jud. Dists. 2007]).

Last, the notices which were mailed to defense counsel indicated thatno adjournment request would be considered unless supported by an affirmation of actual engagement filed in accordance with Part 125 of the Rules of the Chief Administrator (22 NYCRR § 125.1). The Court file does not contain an affirmation of actual engagement and defense counsel makes no claim that one had been filed (see generally Franz v. Home Sweet Home Inspections, 14 Misc 3d 131[A][App. Term 9th & 10th Jud. Dists. 2007][motion to vacate denied where defense counsel failed to file an affirmation of actual engagement as prescribed by 22 NYCRR § 125.1; no proof that affirmation was served upon plaintiff; no proof that court received affirmation before granting default judgment]; Molly v. D'Angelillo, 10 Misc 3d 141[A][App. Term 1st Dept. 2006][case dismissed where plaintiff's [*6]affirmation of actual engagement failed to comply with 22 NYCRR § 125.1]).

Conclusion

A default should be treated consistently with what it is, a serious failure to recognize the importance of the orderly disposition of cases (Bassetti v. Nour, 287 AD2d 126 [2d Dept. 2001]). In this case, defense counsel has failed to substantiate his claim of law office failure and has failed to establish the existence of a meritorious defense to the action. Aware of the ever increasing civil filings in the City Court, and the need to maintain effective control over calendar management, this Court cannot countenance the unexplained and unjustified nonappearance of an attorney at a duly scheduled court conference. Indeed, any other result would ignore controlling precedent, undermine this Court's goal of promoting judicial economy and allow attorneys and litigants to disregard scheduled appearances without a penalty.

Motion denied.

Papers considered:

Notice of Motion1

Supporting Affirmation2

Exhibits A - C3

THIS DECISION CONSTITUTES THE ORDER OF THE COURT

Dated:White Plains, New York

January, 2009

______________________________

HON. JO ANN FRIIA

CITY COURT JUDGE [*7]

TO:

Mark A. Rubeo, Esq.

Attorney for Plaintiffs

30 State Street, Suite G1

Ossining, New York 10562

Finkel Goldstein Rosenbloom & Nash, LLP

Attorneys for Defendant

26 Broadway, Suite 711

New York, New York 10004 Footnotes

Footnote 1: Counsel claims that sometime after 8:00 a.m on December 11, 2008 he called plaintiff's lawyer using the telephone number listed on the 2005 summons and was informed that the telephone number was disconnected. Counsel further contends that he had no other number for plaintiff's attorney. The Court notes that the current telephone number for plaintiff's attorney is listed in the 2008 New York Lawyers Diary and Manual ("Red Book") and on the New York State Unified Court System's web-site, "Attorney Directory." Counsel fails to explain what additional efforts he made to ascertain the lawyer's telephone number.