De Zaio v Rosenbloom

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De Zaio v Rosenbloom 2021 NY Slip Op 32887(U) December 7, 2021 Supreme Court, New York County Docket Number: Index No. 653238/2018 Judge: Shawn T. Kelly Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] NEW YORK COUNTY CLERK 01/11/2022 04:39 Pi NYSCEF DOC. NO. 101 INDEX NO. 653238/2018 RECEIVED NYSCEF: 01/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----X -------------------------------------------------------- INDEX NO. MICHAEL DE ZAIO, Plaintiff, MOTION DATE 653238/2018 09/30/2021 - V - LEE ROSENBLOOM, NY57 D/B/A PLAZA GALLERY, NEW YORK GALLERY, PLAZA APPRAISAL SERVICES, INC.,DOE CORPORATIONS AND/OR ENTITIES Defendant. ----------------- 004 MOTION SEQ. NO. DECISION+ ORDER ON MOTION --------X HON. SHAWN KELLY: The following e-filed documents, listed by NYSCEF document number (Motion 004) 82, 83, 84, 85, 86, 87, 88, 89,90, 91,92, 93,94, 95, 96: 97, 98, 99,100 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD Defendant Lee Rosenbloom moves to ~acate the Court's March 12, 2020 order granting Plaintiff's motion for default pursuant to CPLR §5015 and further to dismiss Plaintiffs July 6, 2019 Amended Complaint for failure to join necessary parties pursuant to CPLR §3211 (a)(l 0). Plaintiff opposes the motion and cross moves for sanctions against both Defendants Rosenbloom and NY57. Motion to Vacate Defendant Rosenbloom moves to vacate the default judgment against Rosenbloom based on a reasonable excuse and meritorious defenses. He claims that as a pro se party he misunderstood his requirement to file a new answer to the amended complaint and it was his understanding that he had a motion pending to dismiss the complaint against him. Timeliness 653238/2018 DE ZAIO, MICHAEL vs. ROSENBLOOM, LEE Motion No. 004 1 of 4 Page 1 of 4 [*!FILED: 2] NEW YORK COUNTY CLERK 01/11/2022 04:39 P~ NYSCEF DOC. NO. 101 INDEX NO. 653238/2018 RECEIVED NYSCEF: 01/11/2022 Defendant Rosenbloom admits that his motion to vacate is filed about a year and a half after the default judgment was granted. However, he contends that it is not untimely due to the COVID-19 pandemic. The default judgment was granted. on March 12, 2020, by order of Justice Andrew Borrok. (NYSCEF Doc. No. 78). Due to the COVID-19 pandemic, on March 20, 2020, Pursuant to Executive Law Section 29-a, Governor Andrew Cuomo issued Executive Order 202.8, tolling New York's statute oflimitations and other procedural deadlines until April 19,.2020. Subsequent Executive Orders further extended the initial toll of the statute oflimitations that Governor Cuomo signed at the beginning of the COVID-19 pandemic to November 3, 2020 (see Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, and 202.67). Defendant Rosenbloom' s motion to vacate the default judgment is timely. There is a strong public policy in this state towards having cases decided on their merits, however a party must first demonstrate it is entitled to vacate its default (Navarro v A. Trenkman Estate, Inc., 279 AD 2d 257, 719 NYS 2d 34 [1st Dept 2000]). A party seeking to vacate a default judgment pursuant to CPLR §5015 ·and CPLR §317, must demonstrate both a reasonable excuse for the default as well as a meritorious cause of action. A determination of what is a reasonable excuse for the defauit is w:ithin the discretion of the Court (Crespo v A.D.A. Mgt., 292 AD2d 5, 739 NYS2d 49 [1st Dept 20_()2]) .. Defendant has not demonstrated either a reasonable excuse for the default or the existence of any meritorious defenses. The record is abundantly clear that Defendant was given ample leeway and direction by the court and nonetheless failed to repeatedly appear and failed to file an Answer to the Amended Complaint. As previously stated by Justice Borrok, 653238/2018 DE ZAIO, MICHAEL vs. ROSENBLOOM, LEE Motion No. 004 · 2 of 4 Page 2 of 4 [*!FILED: 3] NEW YORK COUNTY CLERK 01/11/2022 04:39 P~ NYSCEF DOC. NO. 101 INDEX NO. 653238/2018 RECEIVED NYSCEF: 01/11/2022 As an initial matter, the court notes that Mr. Rosenbloom does not dispute liability, he does not deny any of the facts concemi~g the defendants' default in this case, he does not deny that he failed to file an answer to the complaint or retain counsel for NY57 despite having multiple opportunities to do so, or that he failed to appear for the preliminary conference, or that he failed to file an answer to the amended complaint or otherwis_e appear or move to dismiss. Significantly, he does not even deny that he owes Mr. De Zaio money for the Tiffany Submariner that somehow disappeared; he merely contends that Mr. De Zaio altered the receipt or produced a second receipt and disputes the actual market value of the watch without offering any supporting evidence. (NYSCEF Doc. No. 78). Accordingly, Defendant's motion to vacate the default judgment is denied and Defendants' motion to dismiss Amended Complaint does not need to be addressed. PlaintifPs Cross Motion for Sanctions The remedy of sanctions is to be on~ reserved for situations of "extreme behavior" (Hunts Point Term. Produce Coop. Ass 'n v New York City Econ. Dev. Corp., 54 AD3d 296,296 [1st Dept 2008]). Indeed, in order to avoid a chilling effect, even arguments "lacking in legal merit" must have something even more "egregious" in order to rise to the level of frivolous conduct warranting sanctions (see Parametric Capital Mgmt., LLC v Lacher, 26 AD3d 175, 175 [1st Dept 2006]). Sanctions must "not be imposed in such a manner as to restrict ultimately unpersuasive, yet good-faith, arguments" (Levy vCarol Mgmt. Corp., 260 AD2d 27, 35 [1st Dept 1999]). In evaluating frivolousness, a "court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent" (Matter of Kover, 134 AD3d 64, 74 [1st Dept 2015]). Plaintiffs cross motion for sanctions is denied. It is hereby, 653238/2018 DE ZAIO, MICHAEL vs. ROSENBLOOM, LEE Motion No. 004 3 of 4 Page 3 of 4 [*[FILED: 4] NEW YORK COUNTY CLERK 01/11/2022 04:39 Pi NYSCEF DOC. NO. 101 INDEX NO. 653238/2018 RECEIVED NYSCEF: 01/11/2022 ORDERED that defendant's motion to vacate its default herein is denied and the matter shall be set down for an assessment of damages; and it is further ORDERED that plaintiffs cross motion for sanctions is denied; and it is further ORDERED that, upon the filing by the plaintiff with the General Clerk's Office (60 Centre Street, Room 119) of a copy of this order with notice of entry and a note of issue, and the payment of the fee therefor, the Clerk shall place this matter upon the t!ial calendar for an assessment of damages; and it is further ORDERED that such filing with the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh)]. 12/7/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 653238/2018 DE ZAIO, MICHAEL vs. ROSENBLOOM, LEE Motion No. 004 . 4 of 4 • • OTHER REFERENCE Page4of4

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