Stein v Doukas

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Stein v Doukas 2010 NY Slip Op 34062(U) December 22, 2010 Supreme Court, Suffolk County Docket Number: 08-9909 Judge: Thomas F. Whelan 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. [* 1] SHORT FORM ORDER INDEX No. 08-9909 SUPREME COURT - STATE OF NEW YORK LA.S. PART 33 - SUFFOLK COUNTY ./ ) PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 11/15/10 ADJ. DATES 11/19/10 Mot. Seq. # 009 - MG Mot. Seq. # 010 - MG Mot. Seq. # 011 - XMD ---------------------------------------------------------------X DOUGLAS STEIN, as Executor of the Estate of his mother, CLAIRE STEIN, deceased, Estate of CLAIRE STEIN, DOUGLAS STEIN and WANDER: NELSON REALTY, LLC, Plaintiffs, -againstTED DOUKAS, TELCOR CO., LLC, JAY REALTY ENTERPRISES, INC., ALL ISLAND ABSTRACT, LTD., JOSEPH SHAPIRO and COMMANDER ENTERPRISES, LLC, KEVIN T. GRENNAN, PLLC Atty. For Plaintiffs 1000 Franklin Ave. Garden City, NY 11530 RICHMAN & LEVINE, PC Attys. For Defs. Shapiro & Commander 666 Old Country Rd. Garden City, NY 11530 nt. ROBERT J. DEL COL, ESQ. Attys. For Defs Doukas & TelCor 34 Dewey St. Huntington, NY 11743 Defendants. RIVKIN RADLER, LLP Attys. For Def. Jay Realty 926 RXR Plaza Uniondale, NY 11556 ---------------------------------------------------------------X Upon the following papers numbered 1 to --lL read on these motions b certain defendants to renew and rear e and cross motion by plaintiffs for a default judgment ; Notice of Motion/Order t Show Cause and supporting papers 1 - 4; 5-7 ; Notice of Cross Motion and supporting papers 8-10 ; Ans ermg Affidavits and supporting papers 11-12; 13-14; 15-16; 17-18 ; Replying Affidavits and supporting papers 19-20; 21-2 Other 23-24 (memorandum) ; (and after hearing eomrsel in support and opposed to the motion) it is, [* 2] Stein v Doukas et al Index No. 9909-08 Page 2 ORDERED that this motion (#009) by defendants, Ted Doukas and Telcor, Co., LLC, for reli two orders dated August 31, 2010, which granted the separate motion by defendant, Jay Realty Ente Inc. and the plaintiffs' motion to dismiss the answer served by these defendants, is considered under 5015 and 2005 and is granted; and it is further ORDERED that the separate motion (#010) by defendant, Jay Realty Enterprises, Inc., for 1 ave to reargue those portions of a prior motion (#006) by the plaintiffs for consolidation of this action with a elated action is granted; and it is further ORDERED that the cross motion (#011) by the plaintiffs for, among other things, a defaultjud on its claims against the defendants, Ted Doukas and Telcor Co., LLC, are denied as academic, as the nswer of these defendants has been reinstated by the terms of this order. Applications for leave to reargue, renew and other similar relief are governed by the provisi CPLR 2221. Upon a reading ofthis rule, it is clear that neither renewal nor reargument is a remedy av to a party who has defaulted in opposing a motion (see Parine v Country Arms Equestrian Ctr., 11 440, 782 NYS2d 369 [2d Dept 2004]; Santiago v Allstate Ins. Co., 2002 WL 1837893 [App. Term 2 Rather, relief from such a default is obtainable only upon an application to vacate the default that incl reasonable excuse for said default and proof of a meritorious claim or defense (see Legaretta v Ekhs AD3d 899,902 NYS2d 375 [2d Dept 2008]; Parine v Country Arms Equestrian Ctr., 11 AD3d 440, see also Energy Brands, Inc. v Utica Mut. Ins. Co., 38 AD3d 591, 831 NYS2d 504 [2d Dept Diamond v Vittucci, 36 AD3d 650,828 NY2d 214 [2d Dept 2007]; Brooks v Sunben Realty, Inc., 6 740,829 NYS2d 171 [2d Dept 2007]). While the determination of that which constitutes a reasonable excuse for a default lies wit sound discretion of the trial court (see Hodges v Sidial, 48 AD3d 663, 852 NYS2d 340 [2d Dept Savino v ABC Corp., 44 AD3d 1026, 845 NYS2d 789 [2d Dept 2007]; Juesinoski v Board of Educ. City of NY, 15 AD3d 353, 790 NYS2d 162 [2d Dept 2005]), a disposition on the merits is favored (see v Canales, 74 AD3d 1017,903 NYS2d 499 [2d Dept 2010]). In the exercise of its discretion, the cou accept law office failure as a reasonable excuse (see CPLR 2005; Campbell-Jarvis v Alves, 68 AD3 889 NYS2d 257 [2009]). ns of ilable 3d 02]). des a r,74 upra; 007]; 3d 008]; if the erdes .may 701, Here, the record reflects that defendants, Ted Doukas and Telcor Co., LLC, failed to oppose those portions of the prior motions by defendant, Jay Realty Enterprises, Inc,. And the plaintiffs wherei each sought dismissal ofthe answer of these moving defendants pursuant to CPLR 3126 by reason oftheir ilure to provide responses to discovery demands and stipulations. The record adduced on this moti n by defendants, Ted Doukas and Telcor Co., LLC, reflects that they have advanced a reasonable and just" lable excuse for their prior defaults that is predicated upon law office failure. The moving papers included d tailed and credible explanations of the default by reason oflaw office failure on the part ofthe moving defen ants' counsel (see Winthrop Univ. Hosp. v Metropolitan SllblirbanBusAuth., __ AD3d __ , 910 NYS d 159 [2d Dept 2010]). Among the circumstances that contributed to their defaults were the existence of a yriad [* 3] Stein v Doukas et al Index No. 9909-08 Page 3 oflawsuits by and between the plaintiff and the moving defendants and the pendency in this action of for summary judgment which effected a statutory stay of discovery (see CPLR 3214). The court th finds that under these circumstances and the others described in the moving papers, that the default is ex usable pursuant to CPLR 2005. Moreover, the moving papers contained sufficient proof of a potentially meritorious defens plaintiffs' claims. Accordingly, the motion (#009) by the defendants, Ted Doukas and Telcor Co., vacate their defaults in opposing the prior motions of the defendant, Jay Realty Enterprises, Inc. plaintiffs for dismissal ofthe answer of the moving defendants, is granted. Those portions ofthe two s orders of August 31, 2010 wherein the court dismissed the answer of defendants, Ted Doukas and Telc LLC, upon the granting of the motions by Jay Realty Enterprises, Inc. and the plaintiffs pursuant to 3126 are thus vacated. All issues regarding the adequacy of the discovery provided by defendan Doukas and Telcor Co., LLC, on this motion are referred to the upcoming compliance conferen scheduled for January 4,2011. d the parate r Co., CPLR , Ted Also granted is the separate motion (#010) by defendant, Jay Realty Enterprises, Inc., for lave to reargue those portions of a third order issued by this court on August 31, 2010, which conditionally anted the plaintiffs' motion (#006) to consolidate this action with a related action to the extent of directing joint trial if both actions were ready when called. The moving papers established that the court's determi ation to grant ajoint trial was arrived at mistakenly due to an overlook or misapprehension of the facts pre ented by Jay Realty Enterprises, Inc. in its opposing papers and the law applied by the court thereto (see CPL 2221; Cuomo v Ferran, 77 AD2d 698,908 NYS2d 521 [2d Dept 2010]; Singleton v Lenox Hill Hosp., 61 3d 956, 876NYS2d 909 [2dDept2010]; Beverage Mkt. USA, Inc. v South Beach Beverage Co., 58 AD3 657, 873 NYS2d 84 [2d Dept 2009]). Those portions of the August 31, 2010 order of this court wher in the plaintiffs' motion (#006) for consolidation was granted conditionally to the extent it directed a joint t .al are thus vacated. The plaintiffs' cross motion (#011) which by the notice thereof, demands affirmative relief, that a default judgment only against defendants, Ted Doukas and Telcor Co., LLC, be granted to the plainti fs and that the claims against, by and between the remaining defendants be severed, is denied. The applicat" n for a default judgment is premised upon the dismissal of the answer of defendants, Ted Doukas and Telc r Co., LLC, which dismissal, has been vacated by the terms of this order. Accordingly, the plaintiffs' dema ds for such relief and the severance of the remaining claims are now academic. All other relief demanded y the plaintiffs, either in their notice of cross motion or supporting papers, is denied. DATED: I JJ d.djl 0 I

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