Baum v Drimmer
2012 NY Slip Op 31046(U)
April 17, 2012
Sup Ct, NY County
Docket Number: 115604/2007
Judge: Paul G. Feinman
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
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
HON, PAULG. FElNlVlAN
~ @ 4 u & INDEX NO.
11 ~ 6b0 4 / ! 2 4 0 7
MOTION SEQ. NO.
The papem considered on this motion -are
enumerated In the attached declsionlorder.
Upon the foregoing papers, it I ORDERED that this motion
aredecided In accordance with the annexed decision and order.
COUNTY CLERK'S OFFICE
I . Check one:
2. Check as appropriate: Motlon Is
3. Check if appropriate:
! GRANTED IN PART I ! OTHER
ORDER~JUDGMENTL SUBMIT ORDEWJUDGMENT
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: CIVIL TERM: PART 12
RUBIN BAUM & DENISE BAUM,
Mot. Seq. No.
For the Plaintiffs:
Eric 8 . Schultz. Esq.
I Scott PI.
Plainvicw, N Y I I803
For the Defendant:
Law OHiccs orRobcn 1. Strougo
By: Robert I . Strougo, Esq,
286 Madison Avc., stc 2200
New York, NY 10017
4% 19 2012
Papers considered in rcvicw of this molion 10 vacatc a default
Ordcr IO Show Cause, Affidavits, Afhrmations. Exhibits
Affldavit i n Opp. of Denise Baum, Exhibits
Aflidavil in Opp. of Shepherd Baurn
AfIirmation. Affidavil in Reply
Stipulations of Adjournment, I 111 7/201 1
PAULG . FEINMAN,
CLERKâS O F F ~ C ~
By decision and order dated January 13, 201 1, this court granted plaintiffs Rubin and
Denise Baumâs motion to strike the defendant Mitchell Drimmerâs pro se answer and to enter
judgment against him based on a pattern of defaults by Drimmer related to discovery and in
appearances at scheduled compliance conferences. Notice of entry of that decision was served
on January 2 1,201 1 , and on February 16,20 I 1 the Clerk of Court entered a money judgment
against defendant in the sum of $367,15 1,15. Apparently restraining notices have been placed
on certain of defendantâs Florida accounts, and he now moves by order to show cause to vacate
this courtâs January 13, 201 1 decision and order and the money judgment. Plaintiffs, his sister
and brother-in-law, oppose. For the reasons set forth below, the motion is denied.
Plaintiffs commenced this action in November 2007 by filing and serving a summons
with notice seeking to recover âmoneys lent,â in the amount of $200,000 plus interest from
December 1, 2001 ( Aff. in Opp. Schultz Aff. ex. A). There is no question that defendant was
personally served with the document at his residence in Sunny Isles Beach, Florida (Aff. in Opp.
Schultz Aff. ex. A [Summons w/ Notice; Proof of Service]; OSC Drimmer Aff. 13). Defendant
did not demand a complaint (CPLR 3012 [b]), but rather filed a pro se answer and âdenie[d]â
sufficient knowledge or information, and also â[dleniedâ and demanded âstrict proof â; his
~was dated May 5,2008 ( R. Baum Aff. in Opp. ex. B). On about August 1,2008
plaintiffs attorney mailed defendant various discovery demands, including D. Notice to Admit (
R. Baum Aff. in Opp. ex. C, D). On about October 22, 2008, plaintiffsâ attorney mailed
defendant a copy of the plaintiffsâ Request for Judicial Intervention which included a request for
a preliminary conference, along with a second copy of the discovery demands ( R. Baum Aff. in
Opp. ex. D). On December 23,2008, plaintiffsâ attorney notified Drimmer at his Florida
address, by Certified Mail, Return Receipt Requested, that the court had scheduled their
preliminary conference for January 14,2009 ( R. Baum Aff. in Opp. ex. E).
Defendant appeared at the January 14,2009 court conference through an attorney, Robert
I. Strougo, and the parties entered into a preliminary conference order setting out the schedule
for pre-trial discovery (R. Baum Aff. in Opp. ex, F). The preliminary conference order indicated
that Strougo was authorized to appear and was only appearing for that one conference, although
under the orderâs âAdditional Directives,â it was stated that plaintiffs would provide âan
additionalâ copy of the verified complaint by facsimile transmission to Strougo by January 23,
2009,â with defendant to serve his answer before February 28,2009. The order also provided that
the parties would next appear in court on April 15,2009. Strougo did not file a notice of
appearance at this time.
Neither defendant personally nor an attorney representing him appeared on April 15,
2009. An answer to the complaint was never filed. When defendant failed to appear, plaintiffsâ
attorney, at the Part Clerkâs direction contacted defendant by telephone from the Courthouse.
The conference was adjourned, and, because defendant had not appeared, the attorney mailed
him by Certified Mail Return Keceipt Requested, a copy of the courtâs order adjourning the
conference to April 29,2009. In his accompanying cover letter, plaintiffsâ counsel pointed to
the courtâs language that defendant âshall not be entitled to any further adjournments.â (R.
Baum Aff. in Opp. ex. H [Adjournment]; ex. I [letter of 04115/2009]).
On April 29,2009, plaintiffsâ counsel appeared; nobody appeared on defendantâs behalf.
Plaintiffsâ counsel wrote out a proposed order, which was signed by the court. It stated,
âThe compliance conference in the above-captioned action shall be adjourned to
May 27,2009 at 1 1 a.m. on consent of all parties, The parties are in discussion to
settle the matter. Plaintiffsâ attorney represents that he has spoken to the
defendant pro se and he is in the State of Florida & cannot appear today. This
adjournment shall be final against the defendant.â
See, Order dated 4/29/09 [Feinman, J.]. Nevertheless, when defendant failed to appear, the April
29,2009 conference date was rescheduled to May 27, 2009, and then to July 22,2009,* and
finally to August 12, 2009. Defendant failed to appear on any of these dates, or to send counsel.
â A copy of the complaint, dated December 8,2008, and verified by plaintiffsâ attorney Schultz, is attached
as ex. G to R. Baumâs Amdavit in Opposition.
âPlaintiffsâ attorney mailed defendant a letter by Certified Mail, Return Receipt Requested, on June 26,
2009, notifying him of the adjournment to July 22, 2009; the letter was returned to the attorney marked âunclaimed,â
and âunable to forward.â ( R.Baurn Aff, in Opp. ex. J).
On August 12,2009, the court issued an order finding defendant in default and providing that
plaintiffs could move on notice for entry of a default judgment and reasonable attorneyâs fees; a
copy of the order was mailed by plaintiffsâ counsel to defendant at the Sunny Isles Beach,
Florida address (R. Baum Aff. in Opp. ex. K).
On about September 7,2010, plaintiffs moved to vacate defendantâs pro se answer
asserting a general denial, which had actually been filed before the verified complaint was
served, and for entry of a money judgment. According to the affidavit of service, the notice of
motion was mailed to defendant at the Sunny Isles Beach, Florida address which was contained
in his pro se answer. The motion was calendared for November 12,2010 in the Motion
Submission Part,and defendant defaulted. On January 13,201 1 , the court granted plaintiffsâ
motion on default, and directed that upon proof of service of a copy of the courtâs decision and
order together with notice of its entry, the Clerk should enter a money judgment against
defendant. Judgment was filed and entered on February 16,201 1, in the total amount of
Thereafter, plaintiffs domesticated the judgment in the State of Florida, and by motion
dated August 12,201 1, plaintiffs moved in the Circuit Court of Miami-Dadc County for a writ of
garnishment as to funds belonging to defendant and his wife held by Bank of America, N.A.
(OSC Strougo Aff. ex. E). The Bank answered on September 16,201 1, and indicated there were
three accounts owned by defendant and his wife that might be in issue (OSC Strougo Aff. ex. E).
By order to show cause signed on November 4,201 1, defendant moves to vacate the
January 13,20 1 I order granting plaintiffs a judgment and to reinstate his answer. In essence he
argues that he believed that he and his sister had resolved their quarrel, which concerned monies
loaned by plaintiffs to assist defendant in establishing his business, by discussions memorialized
in an e-mail dated April 22, 2009, sent by Denise Baum to her attorney and copied to defendant,
stating that based on the partiesâ agreement, she was asking her attorney to âcease at this time
from any and all proceedings with regard to the lawsuit and the $200,000.00 that is owed to meâ
(OSC, Drimmer Aff. 7 6- 12; ex. B [04/22/2009 email 3). The agreement as described in the e1
mail from Denise Baum, was that defendant would send her four paintings by their grandfather
and that he already sent her a check for $500.00 âon account, meaning that in time when he has
additional monies he will continue to send money to me.â ( O X Drimmer Aff. ex. B).
Defendant provides a copy of the UPS tracking service showing that the four paintings
were delivered to plaintiffs at their 34Ih Street address on May 12, 2009 (OSC Drimmer Aff. ex.
D). Drimmer also proffers a receipt for a Personal Money Order dated April 22,2009, issued in
the amount of $500.00 and made out to Denise Baum (OSC Drimmer Aff. ex. A). Notably
defendant refers to this payment in his affidavit as a payment for legal fees, and disputes Denise
Baurnâs e-mail statement that it was a payment âon accountâ (OSC Drimmer Aff. 1 9 ; Aff. in
Reply, Drimmer Aff. 77 14, 16).
Defendant alleges that he remained unaware that the litigation continued. For instance,
he alleges that Denise Baum visited Florida in about November 2010 because their father was ill,
that she and defendant spoke in an âamicable way,â and she gave no hint that her attorney was
seeking to strike his answer and enter a default judgment (OSC Drimmer Aff, fi 20). He also
contends that he received none of the court papers or communications by plaintiffsâ counsel,
â[flrom the time of [his] sisterâs letter in April 2009 to September 201 1 â (OSC Drimrner Aff. 77
lS-l6,23). He is silent, of course, as to his failure to appear at the earlier court conference of
April 15,2009, notice of which he apparently concedes receiving, although he denies receiving
any telephone calls from plaintiffsâ attorney (Aff, in Reply, Drimmer Aff. T[ 28). He fails to
explain why the date-stamped June 26, 2009 letter from plaintiffsâ attorney notifying defendant
of the July 22, 2009 adjournment, was returned as âunclaimed,â and âunable to forward.ââ (R.
Baum Aff. in Opp. ex. J). He also does not explain how it was that the courtâs August 22,2009
decision holding defendant in default, was not received by him. Notably, he states that he lived
at the same Sunny Isles Beach address until April 2010 (OSC Drimmer Aff. 1 5 ) ; his relocation
is the apparent reason he gives for why he did not receive plaintiffsâ motion to vacate his answer
and enter a default j ~ d g m e n t .Of course, he never formally or informally notified the court of
any change of address.
Plaintiffs submit two other documents that they argue show that defendant was indeed
aware of the litigationâs continuation. The first is a proposed agreement drafted by plaintiffs,
dated April 27,2009, in which it is stated that defendant would send them âfiveâ paintings by the
grandfather, and a âmonthly check in the amount of $500.00 until at which time the balance of
your debt totaling $199,500.00 is paid back to us,â and that they would forgo interest on the debt
and would âdisband the lawsuit . . . providing [defendant] adhere to [his] end of the bargain.â
(Baum Aff. in Opp. ex, D). According to Denise Baum, defendant did not execute this
document and made no further payments (Baum Aff. in Opp. 1 21-22). The second is an e-mail
from Denise Baum to defendant dated May 14,2009, copied to her attorney, demanding to know
the whereabouts of the fifth painting, and exclaiming that if she did not receive the fifth painting,
she had âevery intention of re in stating [sic] the lawsuitâ (Baum Aff, in Opp. ex. F [e-mail of
5/14/2009]). Reading these emails in conjunction with the history of adjournments of the court
conferences, it appears that the April 29, 2009 conference date was adjourned based on what
âHe currently lives in Aventura, Florida, as stated on his affidavit of October 20, 201 1
appeared to be a tentative resolution to the litigation, but which defendant knew he had not
consented to by the time of the May 27, 2009 conference date. This May 27Ihconference date
was adjourned in part because plaintiffs had decided to go forward with the litigation following
Denise Baumâs May 14, 2009 e-mail and both the court and plaintiffsâ counsel wanted
defendantâs presence and or participation in any compliance conference. Inasmuch as defendant
concedes he was still living at the Sunny Isles address at the time, it appears defendant
purposefully left âunclaimedâ the notice that the May 27,2009 date had been rescheduled to July
It is well-settled that a default judgment will only be vacated where the movant provides
a justifiable excuse for the default and a meritorious cause of action or defense (Barasch v
Micucci, 49 NY2d 549 [ 19801). In assessing a motion to vacate a default judgment, the court
will consider, among other factors, the presence of excusable neglect, the absence of
deliberateness and brevity of the delay, an absence of prejudice, a meritorious cause of action or
defense, the nature of injuries, and good faith in prosecuting or defending the action (Heflney v
Brookdale Hosp. Center, 102 AD2d 842, 842 [2d Dept], app. dismissed 63 NY2d 770 [ 19841).
Defendant argues that the loan was made to his business and not to him personally, that
his sister and brother-in-law understood this, that the business did well for several years but then
collapsed, and that he is not personally liable for repayment. Plaintiffs concede that the check
was made out to the family business, but that this was for the convenience of defendant in
establishing the business, and that it was fully understood that the money was to be repaid to
them. Both sides call the veracity of the other side into question. Finding that defendant has
asserted a meritorious defense does not require the court to find that he will or is likely to
succeed, only that he has a potential to successfully defend the action. Without commenting on
his likelihood of success, it is clear that defendant has a potentially meritorious defense to
personal liability on these loans.
What gives the court pause on this motion to vacate the default judgment is whether the
defendant has a reasonable excuse for his delay. In evaluating this particular situation, it is clear
that the defendant has engaged in a pattern of conduct to delay the resolution of this matter on its
First is the confusion in defendantâs appearance. Defendantâs counsel explicitly
indicated at the preliminary court conference held on January 14,2009, that he was authorized to
appear on defendantâs behalf only for that one appearance. He did not make a formal notice of
appearance then, and apparently still has not done so, although he appends a notarized letter
from defendant stating that he is defendantâs legal counsel and is authorized to appear and
represent defendant (OSC Strougo Aff, ex. A). Nonetheless, according to the County Clerkâs
office, defendant was (and is) self-represented, Attorney Strougoâs statement is essentially
meaningless that although he had been retained for only the one court appearance, he had
informed plaintiffsâ counsel that âif there were any problems I could be called by [plaintiffsâ
counsel] and will make myself available in trying to resolve the disputeâ (OSC, Strougo Aff. 7
24). Absent a formal appearance by counsel, plaintiffs were correct in mailing all documents to
defendant personally, and defendantâs own actions are attributable to him.
Second, as argued by plaintiffs, is that defendant never responded to the Notice to Admit,
let alone the other discovery demands. They were twice mailed to him and requested by
plaintiffsâ attorney on at least one other occasion and, as provided for in the preliminary
conference order, the court extended the time to respond to all demands to April 2,2009 (Aff. in
Opp. Schultz Aff, ex. F [Prelim. Conf. Order]). Plaintiffs thus argue that under CPLR 3123,
because defendant never responded to the Notice to Admit, the statements in the Notice are
deemed admitted for the purposes of the trial, including that defendant received a âpersonal
loanâ from plaintiffs, that he has no intention of repaying the loan, and that an email sent by him
dated November 26,2007 to Denise Baum admits the indebtedness and the promise to repay it
when he obtained money (Aff. in Opp. Schultz Aff. ex. C, Notice to Admit 772, 14,20).
Defendant does not address this issue.
Third, as pointed out by defendant, is that plaintiffs made their motion for entry of a
default judgment more than a year after the court found defendant to be in default and granted
them leave to move for a default judgment. CPLR 32 15 ( c) provides that where a plaintiff fails
to take proceedings to enter judgment within a year, the complaint should be dismissed.
Defendant thus argues that the court should dismiss the complaint. This statutory provision,
however, applies only when a defendant has never answered (see Gildston v Travelers Inc. Co.,
168 AD2d 481,482 [2d Dept 19901, citing Myers v Slursky, 139 AD2d 709,710 [2d Dept
19981). Here defendant âansweredâ the summons with notice. Furthermore, he appeared by
counsel at the preliminary conference. Thus, by law he is deemed to have appeared in this action
CPLR 320 [a]).
Even where a party may have a potentially meritorious defense, a default judgment will
not be vacated when a party has stood by âidly, willfully and persistently, while the action
proceeded to judgment and enforcement proceeds.â (Wilfv Halpern, 234 AD2d 154, 154 [ 1 ââ
Dept 19961 [âAn intentional default is ipso facto inexcusable, and should not be vacated.â]).
Here, defendant fails to satisfactorily explain what appears to be a willful intent to ignore the
proceeding against him, and denial of his motion to vacate is appropriate. Therefore, it is
ORDE ED that defendantâs motion to vacate this courtâs January 13,201 1 decision and
order and the money judgment entered by the Clerk of Court on February 16,2011 is denied; and
it is further
ORDERED that plaintiffs shall servc a copy of this order with notice of entry on the
defendant at his Aventura, FL address contained in Exhibit A to his Notice of Motion, as well as
on attorney Robert Strougo, at 286 Madison Avenue, ste. 2200, New York, NY 10017.
This constitutes the decision and order of the court.
Dated: April 17,2012
New York,New York
(2012 P 12 D&O-115604-2007-002jh)