Clarke v Davmar Holdings, Inc.

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Clarke v Davmar Holdings, Inc. 2012 NY Slip Op 33641(U) April 25, 2012 Supreme Court, Bronx County Docket Number: 021806/2006 Judge: Lucindo Suarez 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] FILED Apr 26 2012 Bronx County Clerk · NEW YORK SUPREME COURT - COUNTY OF BRONX PART 19 ( SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: ,...., fRt'tr /' ,. ¢ Mot. Soq. 04 2 6 ,;\ill. Case Disposed 0 Settle Order :J Schedule Appearance 0 \__ _/ ---------------------------------------------------------------------X CLARKE, CLEMENT Index N'. 021806/2006 Hon. LUCINDO SUAREZ, - against - Justice. DA VMAR HOLDINGS, INC., et ano ---------------------------------------------------------------------X The following papers numbered I to NotJced on A . Z read on this n1otion, VACATE ORDER/JUDGMENT 'I 23 20 12 and d uly su b m1tted as No. 2 on the Motion Calendar of A~ril 23, 2012 . '"" PAPERS NUMBERED Notice of Motion - Order to Shov.' Cause - Exhibits and Affidavits Annexed I, 2, 3, 4 Ans\vering Affidavit and Exhibits 5,6 Replying Affidavit and Exhibits 7 Sur-replying Affidavit and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report- Minutes Fi led Paper~ Memoranda of Law Upon the fOregoing papers, defendants' motio11 to vacate a judgment entered after inquest and to restore the action to the calendar is denied, in accordance \Vith the annexed decision and order. / --~~ ,L' /} . ./----· G~~--~-::; ~~-"'='=-<_.. .. Dated: 04/25/2014 Pon. LUCIN 0 SUAREZ, J.S.C. [* 2] FllED Apr 26 2012 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK· COUNTY OF BRONX: l.A.S. PART 19 --------------------------------------------------------------------X CLEMENT CLARKE, DECISION AND ORDER Plaintiff, Index No. 21806/2006 - against DAVMAR HOLDINGS, INC. and FENTON OWNERS CORP., Defendants. --------------------------------------------------------------------X PRESENT: Hon. Llicindo Suarez Upon the order to show cause signed April 6, 2012 and the affirmation, affidavit and exhibits submitted in suppo~ thereof; plaintiffs affirmation in opposition dated April 17, 2012 and the exhibits annexed thereto; defendru1ts' reply aff1rn1ation dated April 20, 2012 and the exhibit annexed thereto; and due deliberation; the court finds: Defendants Dav1nar 1-loldings, Inc. and Fenton Owners Corp. move to vacate a judgment in the amount of fifty-seven thousand four hundred thirty-three dollars and seventy-seven cents ($57,433. 77) entered against defendants after an inquest held October 7, 2009 and to restore the action to the i calendar. Defendants argue they were never informed of the inquest date and they possess.a meritorious defense to the action·. Plaintiff opposes the application on the grounds that (1) defendants were notified of the inquest; (2) defendants have offered no excuse for the two year delay in maki11g the instant motio11 and (3) defendants have not demonstrated a meritorious defense to the action. The matter was referred to inquest after defendants failed to appear at a court conference on June I 0, 2009. 1 S'ee 22 NYC RR § 202.27(b). 1 Defendants do not address their default in failing to appear for the June 10, 2009 court conference. [* 3] Fl'-ED Apr 26 2012 Bronx County Clerk Although dt;fendants do not cite any specific provision of the CPLR in support of their application, CPLR 5015(.1)(1) permits the court to vacate a judgment for excusable default within one year after service of-a copy of the order or judgment with notice of its entry. The motion is timely as plaintiff has not served notice with orde~ of entry upon defe11dants of the order entered after the inquest or the judgment entered in the Bronx County Clerk's office. A party seeking relief from a judgment entered on default n1ust proffer both a reasonable excuse for the default and a meritorious defense to the action. See Crespo v. A.D.A. Mgmt., 292 A.D.2d 5, 739 N.Y.S.2d 49 (I st Dep't 2002); Eugene Di Lorenzo. Inc. v. A. C. Dutton Lumber Co., 67 N.Y.2d 138, 492 N.E.2d 116, 501 N.Y.S.2d 8 (1986). The determination whether movant has demonstrated a sufficient excuse rests within the court's sound discretion. See Carroll v. Nostra Realty Corp., 54 A.D.3d 623, 864 N.Y.S.2d JO (!st Dep't 2008), appeal dismissed, 12 N.Y.3d 792, 906 N.E.2d 1072, 879 NY S.2d 38 (2009). The court finds the proffered excuse for the default insufficient. See On Kee Foods, inc. v. 7 Eldridge LLC., 80 A.D.3d 462, 914 N.Y.S.2d 153 (!st Dep't 2011). Plaintiff in opposition has submitted a copy of the letter mailed September 23, 2009 notifying defendants' counsel of the October 7, 2009 inquest dat~. The Jetter was sent via certified n1ail return receipt requested, and the return receipt was acknowledged and returned to plaintiff. The court declines to consider defendants' reply affirmation since it lacks an affirmatio11 or affidavit of service. See CPLR 306(a). Even if the court were to consider defendants' reply, it is insufficient to rebut plaintiffs proof that counsel was notified of the inquest. Defendants do not contest the validity of counsel's address listed on the letter or on the return receipt. Furthermore, counsel's general denial ofreceipt, along with the statement that the receipt was not signed by someone ;within her office, is unsupported by any admissible evidence. Absent a rea_sonable excuse, the court need not determine whether defendants have asserted a 2 [* 4] . .FILED Apr 26 2012 Bronx County Clerk meritorious defense: See M R. v. 2526 Valentine LLC, 58 A.D.3d 530, 871 N.Y.S.2d 131 (1st Dep't 2009); Crespo v. A.DA. Mgmt., supra. Accordingly, it is ORDERED, t.hat the motion of defendants Davmar Holdings, Inc. and Fenton Owners Corp. to vacate the judgment entered against them after inquest and restore the action to the calendar is denied. This constitutes the decision and order of the c o u 0 Dated: April 25, 2012 3

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