Francois v Sulney

[*1] Francois v Sulney 2005 NYSlipOp 50574(U) Decided on April 18, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-254 K C

Dieuveut Francois, Respondent,

against

William Sulney, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (D. Waltrous, J.), entered January 12, 2004, denying defendant's motion to renew a prior motion to vacate a default judgment entered against him.

Order unanimously reversed without costs, defendant's motion to renew granted and, upon renewal, default judgment vacated on condition that defendant serve and file an answer within 30 days of the date of the order entered hereon; otherwise, defendant's motion to vacate the default judgment denied.

In this action for breach of an alleged contract resulting from an apparent failed investment scheme, the court below abused its discretion in denying defendant's
motion to renew his prior motion to vacate a default judgment entered against him. A motion to renew must be "based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]). While such a motion is generally based upon the discovery of facts previously unknown to the movant, the court has broad discretion to grant a motion to renew even upon facts that were known at the time of the previous motion (see J. D. Structures v Waldbaum, 282 AD2d 434 [2001]).

On the present motion, defendant, who now has the assistance of counsel, proffered evidence in an affidavit explaining in fuller detail the basis for his contention, raised in two of the preceding orders to show cause, that he was not served with the summons and endorsed complaint, and that he did not find out about the action until after the judgment was entered. He also explained that he had attempted to provide further evidence to the court at prior appearances, but was hampered by lack of English fluency and did not understand that testimonial evidence [*2]could not be submitted upon a motion. Contrary to the statement of the court below, the submission on the present motion was not at all identical to that of defendant's prior attempts to open the default, which were presented on form affidavits and without the assistance of counsel.

Moreover, vacatur of the default judgment is an appropriate exercise of discretion. As an excuse for his failure to appear, defendant offered evidence that he was not served with the summons and complaint, with an explanation of the circumstances. On the merits, defendant and a co-investor offered evidence in affidavits, as well as copies of documents outlining the alleged agreement, supporting defendant's contention that a joint investment went awry, without any liability of the investors to each other. The purported agreement between the parties is written in poor English, and even in the form submitted by plaintiff (which defendant contends was altered to delete a provision that defendant would not be responsible if the investment was lost) is ambiguous as a matter of law (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157 [1990]). The totality of defendant's submissions demonstrate a reasonable excuse for the default and the existence of a meritorious defense (CPLR 5015 [a]). In the overall circumstances of this matter, in which defendant had lost a substantial sum of money even prior to plaintiff's action against him based on the ambiguous agreement, vacatur is also warranted in the exercise of the court's inherent discretionary power in the interest of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003], citing Ladd v Stevenson, 112 NY 325, 332 [1889]).
Decision Date: April 18, 2005