Savitt v Falcinelli
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Savitt v Falcinelli 2009 NY Slip Op 33339(U) January 7, 2009 Supreme Court, New York County Docket Number: 603755/05 Judge: Shirley Werner Kornreich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] LNIUED ON 11912009 SUPREME COURT OF THE STATE OF 9- NEW YORK COUNTY PART -5!L RICHARD P. SAVITT and GARY E. LUCIAN1 INDEX NO. 803756c05 MOTION DAT ¬ 10/2$1[)8 -vMOTION SEQ. NO. 3 FRANK FALCINELLI, et PI. MOTION CAL. NO. plotlcs of PetItl~@ Order to Show Cauar Antwerlng Affldavlta -Afeldavtts -5!@k!!k... - Exhiblb Rsplylng Affldrvlt. Crofts-Motion: Yes [;a No Upon the foregoing papers, plaintiff's motion to vacate a default, is d 2 d . On or about January 10,2008, this action was discontinued pursuant to a settlement agreement. On or about May 29,2008. plaintiff Richard P. Savitt filed a motion for contempt, sanctions, costs, expenses and attorneys fees. This motion WEISreceived in the submissions part on or about June 17,2008. On July 7,2008, the clerk for Part 54 received the motion from the submissions part with a marked date for oral argument set for July 10,2008. Plaintiff failed to appear for oral argument on July 10,2008. Therefore, the court denied the motion and marked it disposed. Plaintiff now moves to vacate this default decision. Pursuant to NYCRR 0 202.27,if, at any scheduled call ofthe calender, if the defendant appears but the plaintiff does not, the court may note the default on the record and enter an order dismissing the action." Campos v. New York City Health and Hospitals Corp., 307 A.D.2d 785 (I" Dept 2003). When an action is dismissed in accordance with NYCRR 5 202.27, the party not in attendance receives no warning other than the notice to appear at the calendar call. Id. Such a dismissal may be vacated only where the plaintiff demonstrates both a reasonable excuse for the default and a meritorious cause of action. Polk Consmction, Inc. v Maks Etingin, 297 A.D.2d 509,511 (1" Dept 2002) Fink v. Anteell, 19 A.D.3d 215 (1" Dept 2005). The court has "sound discretion" in determining whether the plaintiff's proffered excuse and statement of merits is sufficient. Nuvarro v. Trenkmun Estate, Inc., 279 A.D.2d 257,258 (1" Dept 2001). Here, Mr. Savitt has failed to proffer a reasonable excuse for his default. Plaintiff claims that he did not know that his motion WELS for oral argument on July 10,2008 because set defendant's counsel failed to notify him. In support of this position, plaintiff argues that since defendant's counsel never served him with a response to his motion, he never bothered to call the court to scc when his motion was set down for oral argument. Plaintiffs argument fails for several reasons. A review of the county clerk file shows that defendant attempted to serve plaintiff with its opposition to his motion on or about June 13,2008. These papers were sent to plaintiff at 405 East 72"dStreet, Suite 4E, New York N.Y., the same address listed by plaintiff in support of this motion. However, the county clerk file also shows that on or about January 25, 2007,Mr.Savin filed a change of address form with the tsial support office stating his address to be 146 Duane Street, Suite 2C, New York, N.Y. To date, Mr. Savitt has failed to file a change of I [* 2] address form to update the court as to his apparent new address 405 East 7Znd Street, Suite 4E, New York N.Y., the address on his present papers. Court records still list 146 Duane Street as plaintiff's address. Second, the court always sends postcards to counsel for both sides to notify them of the date a motion is set down for oral argument. Mr. Savitt's failure to update the court ~ 1 9 his ncw address caused him not to receive the postcard. to In addition, the major dispute here centers on the purported execution and compliance with the terms ofa settlement agreement. If Mr. Savitt seeks to challenge the settlement agreement or its execution, he should make a motion to enforce or vacate the settlement. Accordingly, it is ORDERED that the motion is denied. Dated: Jmuarv 7, 2009 Check one: FINAL DISPOSITION 0 NON-FINAL DlSpOSlTlON Check If appropriate: DO NOT POST ,
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