Velez v Hunts Point Multi-Serv. Ctr., Inc.

[*1] Velez v Hunts Point Multi-Serv. Ctr., Inc. 2010 NY Slip Op 51019(U) [27 Misc 3d 1233(A)] Decided on June 10, 2010 Supreme Court, Bronx County Thompson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 15, 2010; it will not be published in the printed Official Reports.

Decided on June 10, 2010
Supreme Court, Bronx County

Caroline Velez, as the Executrix of The Estate of Ramon S. Velez, Decedent, Plaintiff,

against

Hunts Point Multi-Service Center, Inc., Defendants. Hunts Point Multi-Service Center, Inc., Third-Party Plaintiff, Ramon S. Velez Family Trust, Third-Party Defendants.



24957/02



APPEARANCES:

Underwiser & Underwiser LLP

Attorney for Plaintiffs/Third-Party Defendants

RAMON S. VELEZ FAMILY TRUST

One Water Street

White Plains, New York 10601

Theodore P. Kaplan, Esq.

Attorney for Defendant/Third-Party Plaintiff

HUNTS POINT MULTI-SERVICE CENTER, INC.

260 Madison Ave., 18th Fl.

New York, New York 10016

Greenberg & Massarelli, LLP

Attorney for Defendant/Third-Party Plaintiff

HUNTS POINT MULTI-SERVICE CENTER, INC.

2929 Purchase Street

Purchase, New York 10577

Kenneth L. Thompson, J.

Defendant/Third-Party Plaintiff's, HUNTS POINT MULTI-SERVICE CENTER, INC. ("HUNTS POINT"), motion for an Order vacating this Court's July 31, 2009 Order striking its Answer and dismissing its Third-Party Complaint pursuant to CPLR § 321(a) is denied. All stays are vacated and the matter shall proceed to inquest as per the Court's July 31, 2009 Decision and Order.

HUNTS POINT's attorney of record withdrew on January 8, 2009. As such, the Court stayed this matter for sixty days on January 12, 2009, to allow HUNTS POINT to procure counsel since it could not proceed either as a Defendant or a Third-Party Plaintiff without one. See CPLR § 321(a) (mandating "that a corporation shall appear by attorney.") (emphasis added). Plaintiff subsequently moved for an Order striking HUNTS POINT's Answer and Third-Party Complaint for failing to do so as required by that Order. This Court granted Plaintiff's application on July 31, 2009, without opposition from HUNTS POINT. HUNTS POINT is now moving to vacate that Order.

"An order made on default should, in general, not be vacated pursuant to CPLR § 5015(a)(1) unless the movant can show a reasonable excuse for failing to oppose the [prior] motion." Pisciotta v. Lifestyle Designs, Inc., 62 AD3d 850 (citation omitted). HUNTS POINT's "reasonable excuse" for failing to respond to Plaintiff's application appears to be that it did not retain counsel because it could not locate one that it could afford. A stance this Court finds unavailing and without merit.

First, HUNTS POINT may not use its failure to retain counsel as a basis to vacate a judgment against it. See Jimenez v. Brenillee Corp., 48 AD3d 351, 352 (holding that "[a] corporate defendant's failure to comply with CPLR § 321 provides no basis for vacating a judgment entered against that defendant, since the rule is not intended to penalize an adverse party for the corporation's improper appearance"); Pisciotta, 62 AD3d at 850 (holding same); see also Lake George Park Comm'n v. Salvador, 245 AD2d 605, 607 (holding that "a corporation appearing and defending on the merits cannot move to set aside a judgment against it on the ground that the corporation was not represented by an attorney").

Additionally, HUNTS POINT may not rely on its inability to afford counsel as a reasonable excuse for its default. See, e.g., Gerlin v. J. Homann Trucking, 303 AD2d [*2]262 (holding that a "failure . . . to take any steps to protect [one's] interests is not reasonably excused by [a] claim that they were unable to afford an attorney"); Moore v. Claudio, 224 AD2d 502, 503 (holding that "appellants' contention that they were unable to afford counsel is not a reasonable excuse for their default").

Finally, absent a reasonable excuse for its default, there is no need to assess whether HUNTS POINT has a meritorious defense to the underlying action. See Crespo v. Kynda Cab Corp., 299 AD2d 295 (holding "[w]here the defendants fail to show a reasonable excuse for their defaults, their motion for relief from default is properly denied regardless of whether they have a meritorious defense").

This does not preclude HUNTS POINT from appearing at the inquest and submitting evidence relative to the damages asserted by Plaintiff.

The foregoing shall constitute the decision and order of this Court.

Dated: __June 10, 2010_______________J.S.C.

APPEARANCES:

Underwiser & Underwiser LLP

Attorney for Plaintiffs/Third-Party Defendants

RAMON S. VELEZ FAMILY TRUST

One Water Street

White Plains, New York 10601

Theodore P. Kaplan, Esq.

Attorney for Defendant/Third-Party Plaintiff

HUNTS POINT MULTI-SERVICE CENTER, INC.

260 Madison Ave., 18th Fl.

New York, New York 10016

Greenberg & Massarelli, LLP

Attorney for Defendant/Third-Party Plaintiff

HUNTS POINT MULTI-SERVICE CENTER, INC.

2929 Purchase Street

Purchase, New York 10577