Coldwell Banker Real Estate Servs. Inc. v Gitlin
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Coldwell Banker Real Estate Servs. Inc. v Gitlin 2011 NY Slip Op 32391(U) August 25, 2011 Sup Ct, Nassau County Docket Number: 002015-09 Judge: Vito M. DeStefano Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. , ' [* 1] SUPREME COURT - STATE OF NEW YORK Present: BON. VITO M. DESTEFANO, Justice TRIAL/IAS , PART 19 NASSAU COUNTY COLDWELL BANKER REAL ESTATE SERVICES INC., d/b/a COLDWELL BANKER RESIDENTIAL BROKERAGE, Decision and Order MOTION SUBMITTED: Plaintiffs, June 21, 2011 -against- MOTION SEQUENCE:04, 05 INDEX NO. 002015- MAE GITLIN and EDUARD GITLIN, Defendants. The following papers and the attachments and exhibits thereto have been read on this motion: Order to Show Cause Notice of Cross Motion Affrmation Affrmation in Reply , moves for an order The Plaintiff, Coldwell Baner Real Estate Services, Inc. s failure to adjudicating Defendant Marie Gitlin in contempt of cour based upon Ms. Gitlin inter alia, comply with a subpoena. The Defendants oppose Plaintiff s motion and, cross-move, for an order pursuant to CPLR 5015 vacating the judgment entered against Mare Gitlin. For the reasons that follow, the Plaintiffs motion is granted and the Defendants motion is granted in par and denied in par. ' cross [* 2] Background and complaint (Ex. On Janua 13 2010 , the Defendants were served with the sumons C" and "D" to Plaintiffs Affirmation in Reply and in Opposition to Cross Motion). Having Febru 22 , 2010 , that received no answer , the Plaintiff notified the Defendants, by letter dated 2010 , it would seek a if it did not receive a response to the sumons and complaint by March 4 On April 23, 2011 , the default judgment (Ex. " C" to Affrmation in Support of MotionV the basis that they Defendants were given another extension to serve and fie their answer on ha yet to find suitable counsel" (Attorney s Affrmation in Reply at' 22). Plaintiffs ,counsel 2009 consented to yet another extension, affording Defendants time to answer up until July 8 , the Defendants (Attorney s Affrmation in Reply at' 24). Notwithstading the three extensions never answered the complaint (Attorney s Affrmation in Reply at' 24). 3215. Thereafer, the Plaintiff moved for judgment against Ms. Gitlin pursuat to CPLR Ms. Gitlin failed to oppose the motion. By order dated May 21 2010 , this cour granted the Plaintiffs motion awarding it judgment against Ms. Gitlin in the amount of$56 to Affrmation in Support of Motion). 157. 50 (Ex. " On November 16 , 2010 , Plaintiff served a subpoena upon Ms. Gitlin to compel her deposition (Ex. " A" to Affrmation in Support of Motion). Ms. Gitlin did not appear for the scheduled deposition. Accordingly, Plaintiff seeks an order adjudging Ms. Gitlin in contempt for failing to comply with the subpoena. Ms. Gitlin opposes the motion and cross-moves for an order inter alia vacating the judgment against her. Cross Motion to Vacate Default Judgment A defendant seeking to vacate a judgment entered upon default in appearng and answering the complaint must demonstrate a reasonable excuse for her delay in appearng and 1 Annexed to the February 22 2010 letter was a copy ofthe summons and complaint. 2 Ms. Gitlin does not dispute the numerous extensions that were given but maintain that she did not tae additional steps to respond to the complaint" because she and Eduard were attempting to and resolve the issue with counsel for the Plaintiff' (Affrmation in Opposition to Motion for Contempt 22). in Support of Cross Motion at The Plaintiff concedes that Eduard Gitlin is not a proper par to this action (Affrmation in 27). The court wil, therefore , grant that branch of the cross Reply and in Opposition to Cross Motion motion seeking dismissal of the complaint insofar as asserted against him notwithstading that the Defendants have failed to annex a copy of the complaint to their cross motion (CPLR 2001). ," [* 3] answering, as well as a meritorious defense to the action (see New York Presbyterian Hospital American Home Assurance Co. 28 AD3d 442 (2d Dept 2006)). Furer , the determination of what constitutes a reasonable excuse lies within the tral cour' s discretion Associates 47 AD3d 778 (2d Dept 2008)). Figeroux (see Benjamin Nurse After Ms. Gitlin was served with the sumons and complaint, her husband, Eduad Gitlin had numerous discussions with (Plaintiffs counsel) and it was (her) belief tht the matter was being resolved" (M. Gitlin s Affdavit anexed to Ex. " 3" to Cross Motion at' 8). However, Plaintiff s counsel states in his affirmation that each time Eduard Gitlin contacted him and offered to settle the matter , the offer was refused (Affirmation in Reply and in Opposition to Cross Motion). Moreover , the Plaintiff consented to thee requests to extend the time to answer sent letters indicating that Ms. Gitlin was in default and moved for a default judgment, which she failed to oppose. In view of the multiple extensions granted by Plaintiff to answer the complaint, Ms. Gitlin s knowledge that she was in default , and that Plaintiff rejected Ms. Gitlin s attempts at settlement , the cour finds the Ms. Gitlin s excuse for defaulting uneasonable under the 15 AD3d 431 (2d Dept 2005) v. D. CA. Constr. , Ltd. (American Shoring, Inc. circumstances (A )ny reliance by the defendant on the paries ' settlement negotiations. . . did not constitute a reasonable excuse for the default , since the defendant was aware durng those negotiations that the plaintiff had already obtained a default judgment" )). In fact, as noted, Ms. Gitlin failed even to oppose the motion for a default judgment , just as she failed to respond to the Plaintiffs infra). subpoena (discussed In the absence of a reasonable excuse , it is unecessar to consider whether Ms. Gitln Delcon Construction (Segoria suffciently demonstrated the existence of a meritorious defense Beverly Road Realty Co. 38 AD3d 875 (2d Rosario Corp. 43 AD3d 1143 (2d Dept 2007); Dept 2007)). Motion for Contempt In order to prevail on a motion for contempt , the moving par must demonstrate that the par charged violated a "clear and unequivocal cour order, thereby prejudicing a right of see also Rienzi 23 AD3d 447 449 (2d Dept 2005); another par to the litigation (Rienzi Dankner Steefel 41 AD3d 526 (2d Dept 2007)). It is not necessar that such disobedience be deliberate; rather the mere act of disobedience, regardless of its motive , is suffcient to sustain a finding of civil contempt if such disobedience defeats, impairs , impedes or prejudices the rights 4 The court notes that it cannot conclude , on the papers submitted, which do not even contain a copy of the complaint , that Chris Galluzzo is a necessar par. .' ,. [* 4] 93 A.D. 2d 834 (2d Dept 1983)). Pursuant to CPLR 5223 ( a)t any time before a judgment is satisfied or vacated , the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment. . . (and) failure to comply with the subpoena is punishable as contempt of cour. ofa par" (Yalkowsky Yalkowsky, Ms. Gitlin does not deny receipt of the subpoena or claim that service was improper (M. Gitlin s Affidavit anexed to Ex. " 3" to Cross Motion at' 8). Ms. Gitlin s only explanation for failing to timely respond to the subpoena is that her attorney had begu negotiations with the attorney for the Plaintiff and that he was considering the settlement offer of $3 000 (M. Gitlin Affidavit anexed to Ex. " 3" to Cross Motion at' 10). However, plaintiffs attorney states in his afrmation that he immediately declined the offer of $3 000 , which he considered uneasonable in light of the default judgment of$56, 170. 50 (Affrmation in Reply and in Opposition to Cross Motion). 5 Given the absence of suffcient explanation for Ms. Gitlin s failure to appear for the (Quantum Heating Services deposition, the cour hereby adjudges her to be in contempt of cour cour finds and determines that Austern 100 AD2d 843 (2d Dept 1984)). In addition, the Inc. her disobedience of the subpoena has defeated , impeded , impaired and prejudiced the Plaintiffs rights and remedies; and it is fuer Accordingly, it is hereby: ORDERED that the branches (a), (b) and (c) of the Defendants ' cross motion are denied; branch (d) is granted and the complaint is dismissed insofar as asserted against Eduard Gitlin; and , it is fuer ORDERED that the Plaintiff s motion for an order adjudicating Marie Gitlin in contempt of cour for failing to comply with the subpoena served upon her is granted; and , it is fuer ORDERED that Marie Gitlin is adjudged in civil contempt. Ms. Gitln may purge this contempt by appearng for a deposition in the Supreme Cour, Nassau County, Lower Level , to be sworn to at such time and answer questions put to her by counsel , said deposition to occur withn 15 days afer service upon her of a copy of this order, service to be made pursuat to CPLR 308 (1) or (2), or the next business day if such period ends on a Saturday, Sunday or legal holiday. Another date and time may be selected by the paries, but such date, once established, shall have the same force and effect as if set down in ths Order. This is a FINAL opportty purge the contempt. ORDERED that if Ms. Gitlin fails to comply with this purge provision, and upon the Although the judgment was not served with notice of entr until March 9, 2011 , Ms. Gitlin and her attorney were aware of said judgment by December 21 , 2010. [* 5] failure of Ms. Gitlin to filing of an affidavit attesting to proper service of ths Order and the appear and purge the contempt thereunder , as punshment, the Clerk shall enter a money warant directing the judgment against Ms. Gitlin in the sum of $250 , and the cour shall issue a , committing sheriff of any county of the State of New York, wherein Ms. Gitlin may be found her to jail, there to remain until she submits to a deposition or until she is discharged according to law, pursuat to CPLR 2308. This shall constitute the decision and order of the cour. Dated: August 25 2011 ui Jk!c Bon. Vito M. DeStefano, J. ENTFRED AUG 29 2011 NAISAU COUNTY COUNTY CLERK' S OFF'CE
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