Vertical Space, Inc. v Village Cleaners of Garden City Inc.

[*1] Vertical Space, Inc. v Village Cleaners of Garden City Inc. 2012 NY Slip Op 50455(U) Decided on March 12, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2012
Supreme Court, Queens County

Vertical Space, Inc., Plaintiff,

against

Village Cleaners of Garden City Inc. and MAMOS PROPERTIES, LLC, Defendants



22427/2011



For the Plaintiff: Law Offices of John H. Lee, P.C., by John H. Lee and Shawn M. Cestaro, Esqs., 188-06 Northern Blvd., Flushing, New York 11358

For the Defendants: Rha & Kim, LLP, by Laura Midwood, Esq., 215-45 Northern Blvd., Bayside, New York 11361

Charles J. Markey, J.

The motion by defendants to dismiss the complaint is granted only to the extent that the first cause of action is dismissed as against defendant Mamos Properties LLC. The Court construes the complaint liberally as to permit the second cause of action, for unjust enrichment, to be properly stated against both defendants. The Court notes that, with regard to the claim of unjust enrichment, it is sufficiently pled. See the discussion of this cause of action in two excellent books: Ernest Edward Badway Encyclopedia of New York Causes of Action: Elements and Defenses [2011 ed. New York Law Journal Practice series] and Louis A. Kass, Necessary Elements of Common Legal Actions [Gould Publications 1978].

The cross motion for a default judgment is denied. The Court does not find an intent to abandon the defense of this action. Although the decision whether to vacate a default judgment generally rests within the sound discretion of the trial court, public policy favors a disposition on the merits (see, Centennial Elevator Indus., Inc. v Ninety—Five Madison Corp., 90 AD3d [*2]689 [2nd Dept. 2011]; Dimitriadis v Visiting Nurse Service of New York, 84 AD3d 1150 [2nd Dept. 2011]; Berardo v Guillet, 86 AD3d 459, 459 [1st Dept. 2011]; Yu v Vantage Mgt. Servs., LLC, 85 AD3d 564[1st Dept. 2011]; Billingly v Blagrove, 84 AD3d 848, 849 [2nd Dept. 2011]; Gerdes v Canales, 74 AD3d 1017 [2nd Dept. 2010]; Khanal v Sheldon, 74 AD3d 894, 896 [2nd Dept. 2010]; Rakowicz v Fashion Institute of Technology, 65 AD3d 536, 537 [2nd Dept. 2009]; Reed v Grossi, 59 AD3d 509, 511-512 [2nd Dept. 2009]; Bunch v Dollar Budget, Inc., 12 AD3d 391 [2nd Dept. 2004]; Wilcox v U-Haul Co., 256 AD2d 973 [3rd Dept. 1998]; Zara Realty Holding Corp. v. E & J Deli and Grocery, Inc., 2012 WL 687904, 2012 NY Slip Op. 50364(U) [Sup Ct Queens County 2012] [decision by the undersigned]; U.S. Bank Nat. Ass'n v. Nyarkoha, 2012 WL 662205, 2012 NY Slip Op. 50353(U) [Sup Ct Queens County 2012] [decision by the undersigned].

As the Appellate Division, Second Judicial Department, just recently emphasized in Toll Brothers, Inc. v. Dorsch, 91 AD3d 755 [2012], in reversing a determination of the IAS Court:

"A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" ( Clover M. Barrett, P.C. v. Gordon, 90 AD3d 973, ————, 936 N.Y.S.2d 217 [2d Dept 2011]; see Development Strategies Co., LLC, Profit Sharing Plan v. Astoria Equities, Inc., 71 AD3d 628, 896 N.Y.S.2d 396). "Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible" (Dimitriadis v. Visiting Nurse Serv. of NY, 84 AD3d 1150, 1150—1151, 923 N.Y.S.2d 691; see U.S. Bank, N.A. v. Dick, 67 AD3d 900, 902, 889 N.Y.S.2d 223; Moore v. Day, 55 AD3d 803, 804, 866 N.Y.S.2d 303).

Here, the defendant established both a reasonable excuse for the default, and the existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits ( see Dimitriadis v. Visiting Nurse Serv. of NY, 84 AD3d at 1151, 923 N.Y.S.2d 691; Moore v. Day, 55 AD3d at 805, 866 N.Y.S.2d 303; Li Gang Ma v. Hong Guang Hu, 54 AD3d 312, 313, 863 N.Y.S.2d 231; Ahmad v. Aniolowiski, 28 AD3d 692, 693, 814 N.Y.S.2d 666). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default. [*3]

The Court directs the parties to commence discovery proceedings immediately: first, the parties are directed to exchange all documents relating to the claims and defenses asserted. Within three weeks thereafter, the parties are directed to engage in depositions.

The Court will take swift action, including the striking of pleadings, against any party that derails or obfuscates discovery.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

March 12, 2012