Jericho Atrium Assoc., Inc. v Pegasus Internet Communications, Inc.
Annotate this CaseDecided on September 15, 2004
Supreme Court, Nassau County
JERICHO ATRIUM ASSOCIATES, INC., Plaintiff,
against
PEGASUS INTERNET COMMUNICATIONS, INC. a/k/a PEGASUS COMMUNICATIONS, INC., DANIEL PHILLIPS and SAVERIO CARINO, Defendants.
743/01
F. Dana Winslow, J.
Defendant PEGASUS INTERNET COMMUNICATIONS, INC. a/k/a PEGASUS COMMUNICATIONS, INC. ("PEGASUS") was a former commercial tenant of the plaintiff JERICHO ATRIUM ASSOCIATES for an office suite in Jericho, New York, pursuant to a written lease dated June 15, 1998 (the "Lease"). The Lease was to extend for a period from July 1, 1998 through September 30, 2003. Simultaneously with the execution of the Lease, defendants DANIEL PHILLIPS ("PHILLIPS") and SAVERIO CARINO ("CARINO"), principals of PEGASUS, executed a written guaranty of PEGASUS's obligations under the Lease ( the "Guaranty"). On November 30, 2000, in resolution of landlord/tenant proceedings prompted by defendants' nonpayment of rent, PEGAGUS surrendered the Lease and vacated the premises.
On or about January 16, 2001, plaintiff brought an action to recover amounts owed pursuant to the Lease, which included unpaid rent, real estate taxes and other expenses for the [*2]period from September 1, 2000 through January 31, 2001. Defendants answered, and plaintiff brought a motion for summary judgment pursuant to CPLR §3212. Defendants submitted no opposition to this motion. On or about June 14, 2002, this Court, by Hon. John W. Burke, J.S.C., granted the motion, and a judgment was entered on October 16, 2002 (the "Judgment") in the sum of $42,985.80.
Enforcement proceedings followed. On February 5, 2003, after their initial failure to respond to a judgment debtor subpoena, and in the face of a contempt motion filed by plaintiff, defendants PHILLIPS and CARINO appeared for an examination relating to the satisfaction of the judgment. As a result of this examination, plaintiff learned that PHILLIPS and his wife had sold their home to their daughter on October 4, 2001, and that CARINO and his wife had conveyed title of their home to the wife individually, on February 26, 2001, both transfers taking place after the commencement of this action. Leave to serve subpoenas for further examinations regarding these conveyances was granted by Justice Burke on September 16, 2003. Defendants' failure to appear for such examinations prompted another motion for contempt, which resulted in (i) an agreement to appear for a deposition on a scheduled date, which was not honored by defendants, and (ii) a stipulation of contempt, curable by appearance, which was not cured. A Final Order of Contempt was issued by this Court on April 9, 2004.
On May 20, 2004, by Order to Show Cause, defendants moved to vacate the Judgment pursuant to CPLR §5015(a), claiming that their default in opposing the summary judgment motion was due to the "law office failure" of their prior attorney. Pursuant to the Order to Show Cause, a conference/oral argument on the motion was held on June 7, 2004. After discussions, a settlement proposal was considered by counsel, and the conference was adjourned until June 16, 2004. Upon the unexplained failure of defendants' counsel to appear on the adjourned date, the motion was marked submitted.
CPLR §5015(a) permits the Court to grant relief from a judgment on the basis of excusable default, if such motion is made within one year after service of the judgment, with Notice of Entry, upon the movant. In this case, plaintiff neglected to attach evidence showing when, if ever, a copy of the Judgment was served upon defendants. There is no doubt, however, that defendants learned of the Judgment no later than February 5, 2003, in the context of the enforcement proceedings, and that the motion to vacate was not filed until May of 2004. Defendants offer no excuse for their delay of over one year from the time they undoubtedly knew of the Judgment. In fact, defendants were repeatedly reminded of the existence of the Judgment throughout the course of the enforcement proceedings and the motions for contempt, and yet no motion for relief from the Judgment was made until after the Court issued its final contempt order. "A court's discretion to relieve a party from a judgment should not be exercised where that party has been dilatory in asserting its rights." Epps v. LaSalle Bus, Inc., 271 AD2d 400. See also Johnson v. Nello Homes, Inc., 159 AD2d 562. The instant motion may properly be denied on that basis alone.
Further, a party seeking to vacate a default judgment must demonstrate both a reasonable [*3]excuse for the default and the existence of a meritorious defense. Parker v. City of New York, 272 AD2d 310. The determination of what constitutes a reasonable excuse lies within the discretion of the Court. Id. Although the Court may accept "law-office failure" as an excuse, it should not excuse conduct that amounts to a pattern of willful default or neglect. Wynne v. Wagner, 262 AD2d 556.
In this case, defendants argue that their default in opposing plaintiff's summary judgment motion was due to the mistaken belief of their prior attorney, John A. Dowd, that defendants had retained new counsel to represent them in this matter. Defendants neglect to mention, however, who was responsible for that mistaken belief. In his affirmation submitted with defendants' motion, Mr. Dowd states: "I was advised by Mr. Carino that they would be retaining new counsel, and at some point thereafter, I was advised that they had retained an attorney by the name of Andrew Lippert [sic] thereafter Mr. Carino picked up his file from my office." Attorneys Affirmation ¶4.
Mr. Dowd had forwarded to defendants, on January 29, 2002, a letter from plaintiff's counsel confirming that the motion was adjourned to March 1, 2002. See Attorney Affirmation ¶7. Defendants were aware of the return date of the motion. They had time to, and undertook to, retain new counsel, and took possession of the file. Nonetheless, they failed to submit opposition to the motion or to seek additional time to do so.
In defendants' sworn statements to the Court, they each state, in identical language, that "While we did consider at some point retaining Andrew Liput as our attorney, we never did, and we were never aware that a motion had been submitted to the Court unopposed. We were under the impression that attorney Dowd had addressed this matter on our behalf." Affidavit of Daniel Phillips, ¶7; Affidavit of Saverio Carino, ¶7. The Court wonders how defendants could have maintained this impression when they had, literally and figuratively, taken the case away from Mr. Dowd.
Defendants could not have remained ignorant after July 1, 2002, when Mr. Dowd sent them a copy of the Order granting summary judgment. See Attorneys Affirmation, ¶7. Yet no motion was made for relief from that Order.
It is apparent to the Court that defendants conduct "cannot be described as an 'isolated inadvertent mistake' meriting indulgence [citation omitted]. It can more aptly be characterized as 'a serious lack of concerned attention to the progress of this action' for which no reasonable excuse has been offered [citation omitted]." Burlew-Watkins v. Wood, 225 AD2d 973.
In the absence of a reasonable excuse, the Court could not properly vacate the Judgment, even if the defendants presented an arguably meritorious defense. Burlew-Watkins v. Wood, supra. These defendants have shown no meritorious defense. They cannot contest their liability pursuant to the Lease and Guaranty. At most, they have an arguable claim against the accuracy of a portion of the amount. It is simply too late to raise this insubstantial challenge. [*4]
The Court has considered the remaining contentions of the parties and finds them to be without merit. Accordingly, it is
ORDERED, that defendants' motion to vacate the Judgment pursuant to CPLR §5015(a) is denied.
This constitutes the Order of the Court. Plaintiff shall serve a copy of this Order upon defendants, with Notice of Entry, forthwith upon receipt from any source.
ENTER:
Dated: _______________________________________________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
