Commissioners of the State Ins. Fund v Persaud

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Commissioners of the State Ins. Fund v Persaud 2012 NY Slip Op 32923(U) December 4, 2012 Sup Ct, New York County Docket Number: 400794/08 Judge: Joan A. Madden 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. SCANNEDON I211012012 [* 1] v The following papers, numbered 1 to Notice of Motion/ Order to Show Cause Answering Affidavits - Exhiblts were read on this motion tolfor - Affidavits - Exhibits .., I Replying Affidavits Cross-Motion: I M R NUMBERED E$ Yes o = Upon the foregoing paper$, it is >heck one: R I N A L DISPOSITION :heck if appropriate: NON-FINAL DISPOSITION 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. REFERENCE a SETTLE ORDER/ JCIDG. [* 2] COMMISSIONERS OF THE STATE INSURANCE FUND, INDEX NO.400794/08 Plaintiff, -againstVISHAI PERSAUD d/b/a VP CONSTRUCTION, Defendant \ 1 FILED DEC 07 2012 # JOAN A. MADDEN, J.: In this action to recover worker's compensation insurance premiums, defendant moves for an order vacating this court's order dated October 5,2012, which granted plaintiffs motion for summaryjudgment on default; andor an order pursuant to CPLR 222 1 allowing defendant to renew and reargue plaintiffs prior motion and to vacate the court's October 5,2012 order1 and/or an order pursuant to CPLR 321 5, setting aside the judgment awarded to plaintiff and refening the matter for an inquest to determine the amount to which plaintiff is entitled. Plaintiff opposes the motion. Plaintiff commenced this action on April 15,2008. Defendant initially defaulted by neither appearing nor answering. Plaintiff moved for a default judgment and this court issued an order dated January 27 2009 granting the motion. On June 29,2009, a judgment was entered in the total amount of $393 15.06. In December 2009, the parties filed a so-ordered stipulatian dated August 10,2009, vacating the default judgment and permitting defendant to answer. The stipulation also provided that both parties agreed to be bound by plaintiffs audit determination 1 [* 3] 3 b and defendant agreed to execute a confession of judgment for the audit amount together with 18% collection costs. In June 20 10, plaintiff moved by notice of motion for s u ~ ~ l l l l i ~ ~ y judgment, returnable in the motion submissions part, Room 130, on July 19,2012. Defendant once again defaulted by not appearing or submitting opposition papers on July 19,2012. On October 5,2012, this court issued an order granting plaintiffs motion for summary judgment on default, and "based on the parties so-ordered stipulation," directed the Clerk to enter judgment against defendant in the amount of $493 16.22, together wt interest on the principal amount of $29,5 16.22and statutory ih collection costs in the amount of $5,313.00. On or about October 23,2012, defendant filed the instant order to show cause to vacate the order granting plaintiff summary judgment on defendant's default. A party seeking to vacate his default must demonstrate both a reasonable excuse for his default and a meritorious defense to the action. &g Eugene DiLorenzo, Inc v. A.C. Duttan LWllber CO. I ~ c67 NY2d 138,142-143 (1986); KQU~&OSv. Vernon Sutton Realty, 40 AD3d , 355 (I" Dept 2007); Facsimile Qgunun~ 'cations Industn h c v. NYU HosDiM Center, 28 *ww AD3d 391 (1" Dept 2006). Here, defendant has not adequately established either requirement. In seeking to establish a reasonable excuse for defendant's default, his counsel submits an affirmation that he did not intend to default on plaintiff's summary judgment motion. ' Specifically, defendant's counsel alleges that on June 2 1 ,2012 when he and plaintiff's counsel appeared for a status conference ''your court clerk agreed that the submission of the summary judgment papers would be adjourned to October 18,2012 to m r o wt the adjourned i r r ih conference date." 2 I [* 4] Defendant s claimed excuse is not reasonable under the circumstances. While defendant s counsel points to the order issued at the June 21, 2012 status conference, the order simply states that plaintiff s summary judgment motion is pending in motion support, and does not mention any adjournment of the motion. Plaintiffs summary judgment motion was on for the first time in the motion submissions part on July 19,2012; defendant defaulted by neither appearing nor submitting opposition papers. Since the motion was in the submissions part and defendant had not yet submitted opposition, absolutely no reason existed to adjourn the motion and the status conference to same date. Notably, this court has nothing to do with ~ Q ~ ~ O Ithe in E submissions part, and any request for an adjournment would have to be made directly to motion support, by application or stipulation. Moreover, plaintiffs counsel asserts that both he and the court understood that July 19,2012 was the return date of the motion, that date w s posted on the a court s website, and the June 12,2012 status conference order mentions nothing about ah adjournment of the motion. Under these circumstances, any misunderstandingon the part of defendant s counsel as to the return date of the motion, is neither reasonable nor excusable. However, even if defendant s proffered excuse were reasonable, he has failed to make a sufficient showing of a meritorious defense. Disputing the amount of plaintiffs audit, defendant submits an affidavit from his accountant to support his argument that he is entitled to an inquest as to damages. The accountant s affidavit merely states in a conclusory fashion that the premium being demanded by plaintiff is grossly inaccurate and has unequivocally been inflated, and [tlhere is absolutely no possible way that defendant s premium should be as high as the plaintiffs are demanding. It is literally criminal. Noticeably absent from the accountant s affidavit is any factual basis for these conclusions. It is well settled that in order to 3 [* 5] demonstrate a meritorious defense, defendant must submit an affidavit f o an individual with rm knowledge of the facts, and that such affidavit "must make sufficient factual allegations [and] do more than merely make conclusory allegations or 'vague assertions."' Peacock v. Kaliksw, 239 AD2d 188, 190 (1" Dept 1997) (quoting National Recovew Svsterns v. Weiss, 226 AD2d 289, 290 [1st Dept 19961); accord Koutrakos v. Vemm Sutton Realty, suma at 356; CtXlltllU'cations Industries, Inc v. NYU Hospital Center, supra at 392; see also Pip X-Power Media. Inc v. Ocean Bridge. Inc, 83AD3d 612,613 (1" Dept 2011). Thus, since defendant has established neither a reasonable excuse for his default nor a meritorious defense to the action, he is not entitled to the requested relief and the motion must be denied. Accordingly, it is ORDERED that defendant's motion is denied in its entirety. * I 4 ENTER:,

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