Matter of Tenenbaum v Setton
Annotate this CaseDecided on June 13, 2012
Supreme Court, Kings County
In the Matter of the Confirmation of the Award Made in Arbitration by the Beth Din of Justice of the Kollel Averichim and Yeshiva, between, Yitzchok Tenenbaum, Petitioner,
against
Efraim Setton, Respondent.
24166/11
Attorney for Petitioner
Tedd Blecher, Esq.
225 Broadway, Suite 3010
New York, New York 10007
(212) 732-1900
Attorney for Respondent
Levi Huebner, Esq.
Levi Huebner & Associates, PC
478 Malbone Street, Suite 100
Brooklyn, New York 11225
(212) 354-5555
Francois A. Rivera, J.
By order to show cause dated March 3, 2012, the petitioner, Yitzchok Tenenbaum (hereinafter Tennenbaum or movant), under motion sequence two, moves to restore the matter onto the motion calender. Respondent Efraim Setton (hereinafter Setton or respondent) opposes the application.
BACKGROUND
On October 25, 2011 petitioner filed a notice of petition and verified petition with the Kings County Clerk's Office. Respondent has not filed an opposition to the petition, nor an answer.
The petition seeks to confirm the arbitration award issued by a religious court, a Bet Din, on October 26, 2010 for $24,900.00. The petition was returnable on February 21, 2012, and was marked off due to the non-appearance of the petitioner.
[*2]MOTION PAPERS
Petitioner's motion papers consist of the order to show cause, two attorney affirmations, and exhibits numbered "1" through "4." Exhibit "1" is the notice of petition and accompanying verified petition and translation of the Bet Din award. Exhibit "2" is the affidavit of service of the notice of petition and verified petition on the respondent. Exhibit "3" is a letter from the Department of Cardiothoracic Surgery at North Shore University Hospital (hereinafter North Shore) dated January 31, 2012, addressed to Mr. Blecher, Esq., counsel to the petitioner. The letter states that Mr. Blecher was admitted to North Shore on January 19, 2012, had open heart surgery on January 20, 2012 and was discharged on January 26, 2012. Exhibit "4" is a facsimile cover sheet and fax confirmation page dated February 8, 2010, containing instructions to appear in Part 52 in connection with the instant petition to David Stein, Esq.
In opposition to the motion the respondent has submitted an attorney's affirmation, respondent's affirmation and ten exhibits labeled "1" through "10." Exhibit "1" is the instant order to show cause and accompanying exhibits. Exhibit "2" is an unsigned stipulation to adjourn the return date. Exhibit "3" is an e-mail from Levi Huebner, Esq., counsel to respondent, to Ted Blecher, Esq. regarding the stipulation to adjourn the motion. Exhibit "4." is a facsimile cover sheet and message dated February 8, 2012, from Mr. Blecher to Mr. Huebener, also regarding the stipulation to adjourn. Exhibit "5" is an e-mail correspondence from Mr. Hubener to Mr. Blecher. Exhibit "6" is a notice of appearance by David Stern in the Civil Court in connection with Olorode v. Adeleye CV-018535-11K1. Exhibit "7" is copy of the file cover of Olorode v. Adeleye, with a notation by Hon. Noach Dear. Exhibit "8" is a copy of the order after trial of the Hon. Noach Dear. Exhibit "9" is a copy of a transcript dated February 10, 2012.
LAW AND APPLICATION
The instant petition was marked off due to the failure of the petitioner to appear on February 21, 2012. Petitioner now moves to put the matter back on the motion calender. The analysis is akin to CPLR 5015 (a)(1) as both an excusable default and the existence of a meritorious action must be established (Lopez v. Imperial Delivery Service, Inc., 282 AD2d 190 [2d 2001]).
The court is permitted to exercise its discretion and accept an explanation of "law office failure" to excuse a default (Vita v. Alstom Signaling, Inc., 308 AD2d 582 [2d 2003]). In order to establish a reasonable excuse for the default, the petitioner submits two attorney affirmations. Mr. Blecher's affirmation asserts that he unexpectedly had to undergo open heart surgery for a triple bypass on January 20, 2012, and was recuperating at home. He engaged David Stein, Esq. to appear on the return date in his stead. Mr. Stein's affirmation supports Mr. Blecher's assertions and adds that he was unintentionally delayed before Justice Noach Dear in Kings County Civil Court. Thereby missing the calender call in Part 52. This Court finds that the attorneys' affirmations provide a reasonable excuse for the default.
The second prong which must be satisfied is a meritorious defense or action. An affidavit from a person with first hand knowledge must set forth the merits of the action. The motion papers fail to include an affidavit of merit. Generally a petition or complaint that is verified and provides sufficient factual allegations may be substituted for an affidavit of merit (Oversby v. Linde Div. Of Union Carbide Corp., 121 AD2d 373 [2d 1986]). However, in the instant action the petition is verified by Mr. Blecher and not by the petitioner and there is no indication that he [*3]has personal knowledge of the underlying allegations. Therefore, the verified petition cannot be utilized to establish a meritorious cause of action (Id).
Accordingly, the application to restore the motion to the calender is denied with leave to renew.
Enter:
J.S.C.
Enter Forthwith:____________________________
J.S.C.
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