Law Office of James E. Hurley Jr. v Beulah Church of God in Christ Jesus Inc.

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Law Office of James E. Hurley Jr. v Beulah Church of God in Christ Jesus Inc. 2012 NY Slip Op 30927(U) April 9, 2012 Sup Ct, New York County Docket Number: 12584/2007 Judge: Judith J. Gische 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. ANNED 0N411012012 [* 1] ? SUPREME COURT OF THE STATE OF N E W YORK NEW YORK COUNTY i PART J@@ ' I Index Nurnbur : 102584/2007 HURLEY JR., ESQ. JAMES E, vs . BEULAH CHURCH OF GOD IN CHRIST SEQUENCE NUMBER : 007 OTHER RELIEFS -- ! - I ? 1 0 [* 2] SUPREME COURT OF THE STATE OF N W YORK E COUNTY OF NEW YORK: PART 10 ----_----- ---LAW OFFICE OF JAMES E. HURLEY JR., I - X DEClSlON/ORDER Index No. 102584-2007 Seq. No: 007 Plaintiff, -againstPRESENT: HOD.Judith J, G ische BEULAH CHURCH OF GOD IN CHRIST JESUS INC., J.S.C. Defendant. Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these)motion@): Upon the foregoing papers, the Decision and Order of the court is as follows: This is an action by the plaintiff, LAW OFFICEOF JAMES.E. HURLEY ( Plaintiff), JR. to recover unpaid legal fees from his former client, the defendant, BEUWHCHURCH OF GOD IN CHRIST JESUS, INC. ( Defendant ).The court granted summary judgment in favor of Plaintiff (Order, Gische J., 9118109) ( Prior Order ), and subsequently corrected the I I Prior Ordsr on October 7, 2009 (Order, Gische J., I O n ~ O Q ( Amended Order ). Plaintiff ) now seeks a n order directing the clerk to enter the judgment it was awarded pursuant to the Prior Order. This motion is submitted to this court without opposition. Consequently, it is decided on default. The court s decision and order is as follows: FILED [* 3] Discussion In the court's Amended Order, Plaintiff was granted summary judgment, ordering f the Clerk o Court to enter a money judgment in favor of Plaintiff and against Defendant for Thirty One Thousand Four Hundred Eighteen Dollars ($31,418.00) for professional legal services rendered from September 13, 2005 through December 28,2006 plus interest. Pursuant to Uniform Rule §202.48[a], Plaintiff was required to submit the proposed judgment to the Clerk of Court within 60 days after the signing and filing of the decision (Uniform Rule §202.48[aJ). Thus, to timely file with the Clerk of Court, Plaintiff should have submitted the judgment to the Clerk of Court by December 6,2009. Here, Plaintiff acknowledges his failure to timely submit the judgment within 60 days of the signing or filing. "Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown" (u.).Plaintiff asserts that its failure to timely file with the Clerk of Court is attributabfe to law office failure and should be excused. Under certain circumstances, law office failure provides a reasonable excuse for why a party failed to comply with an order. (mGoldrnan v. Cotter, 10 A.D.3d 289,291 [ l s t Dept 2004]). While it is within the sound discretion of the court to determine whether the submitted excuse is sufficient, law office failure is not an absolute excuse for noncompliance with time requirements. (see Id.;Navarro v. A, Trenkman Estate. Inc., 279 A.D.2d 257,258 [ i s t Dept 20011;De Vito v. Marine M i u n d Bank, N.A,, 100 A.D.2d 530 [Zd Dept. 19841; Traveler$ Propertv Casualty Company of America v. Consolidated EdisQrl, 2008 NY Slip Op 3345811 [N.Y. Sup. Ct. 20081)."Mere allegation of law office Page2of 4 [* 4] failure, without any supporting facts to explain and justify the failure, wouM be insufficient to establish excusable default (Tandy Cornputer Leasinq v, Video X Home Library, 124 A.D.2d 530 [ l s t Dept. 19861). In her affirmation, Plaintiffs attorney, Pragna Parikh, cites tantamount law office failure as the cause for delay in submitting the judgment to the Clerk of Court. She fails, however, to articulate any reasons that amount to law office failure. Plaintiff, a practicing attorney who represented himself in this action, does not elaborate why he delayed in taking steps to have the judgment entered. Without excusable default, the court cannot excuse PJaintiffs noncompliance with §202.48[a] stime requirements. Even were the court persuaded that Plaintiffs delay is excusable, Plaintiff improperly served this motion on Defendant pursuant to CPLR 5 2013[b]. While service upon Defendant directly is valid when commencing an action, therafter, once defendant has appeared by counsel, Plaintiff is required to serve subsequent pleadings upon the apposing party s attorney (see CPLR 5 2013;Cookv s Island Stegk Pub v, Yorkville Elec. Co., 130 Misc.2d 869 [N.Y. Cty.Ct. 1g86j). Here Defendant, a corporation, is represented by counsel and there has been no substitution of counsel filed with the court. Therefore, Plaintiff s failure to sewe Defendant s counsel constitutes insufficient service upon the Defendant. Plaintiff also improperly seeks enforcement of the Prior Order although it was later amended on October 7,2009. Although the corrections on the Amended Order were de minimus, once the court amended the Prior Order, t h e Prior Order was superceded. Page 3 of 4 [* 5] Accordingly, Plaintiffs motion to enforce the Prior Order and directing the clerk to enter judgment in his favor is denied without prejudice to renew. Such renewal shall, at a minimum, consist of a complete explanation for the delay in entering judgment and proof of proper service on the defendant. Such renewal shall be no later than 90 days from the date this decision/order appears scanned in SCROLL. Conclusion In accordance herewith, it is hereby ORDERED that the motion by Plaintiff seeking to enforce the Order entered on September 18, 2009 is denied without prejudice to renew no later than 90 days from the date this decisionlorder appears scanned in SCROLL; and it i further s ORDERED that any requested relief not expressly addressed herein has nonetheless been considered and is hereby denied; and it is further ORDERED that this shall constitute the decision and order of the Court. Dated: New York, New York April 8,2012 So Ordered: Page 4 of 4

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