Delijani v Law Office of Sean Sabeti, P.C.

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Delijani v Law Office of Sean Sabeti, P.C. 2012 NY Slip Op 31590(U) May 31, 2012 Supreme Court, Nassau County Docket Number: 601160-11 Judge: Steven M. Jaeger Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] S' SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice TRIAL/lAS , PART 41 NASSAU COUNTY INDEX NO. : 601160- PARHAM DELIJANI MOTION SUBMISSION DATE: 4- 27- Plaintiff -againstMOTION SEQUENCE NO. LAW OFFICE OF SEAN SABETI , P. Defendant. The following papers read on this motion: Emergency Order to Show Cause , Affirmation , and Exhibits Affirmation Reply Affirmation Order to show cause by the defendant Law Office of Sean Sabeti , P. C. for an order (1) vacating a judgment of default entered against it dated March inter alia: 2012; (2) dismissing the within action pursuant to CPLR 3211; (3) designating the plaintiff s claims herein as counterclaims in a related action between the parties entitled Delijani Law Offce of Sean Sabeti Misc. 3d. , P. c., v Parham Delijani and Joseph , Index No. 18123- 11 (Supreme Court Nassau County, 2011); and (4) imposing sanctions as against the plaintiff and his counsel pursuant to 130 NYCRR 9 130 1.1. ," [* 2] In October , 2011 , the plaintiff Parham Delijani commenced the within action against his former counsel , the defendant " Law Office of Sean Sabeti , P. the defendant" ). The plaintiff originally retained the defendant in 2009 to represent him in certain post-judgment proceedings commenced by the plaintiff s former wife which arose out of a contentiously litigated matrimonial action concluded in 2003 (Gellis Aff. , Exh. ; Cmplt. 7). 4; Sabeti Aff. In that prior , post-judgment proceeding, the plaintiffs former wife was attempting to inter alia modify the parties ' judgment of divorce and incorporated stipulation of settlement so as to relocate the parties Delijani (Nassau County Index No. 18123- 11), ' children to California Cmplt. (Sabeti 6). Among other things , the verified complaint in this action alleges that the defendant failed to provide effective and competent legal services to the plaintiff and never filed a written retainer agreement pursuant to 22 NYCRR 9 1400.3 thereby entitling the plaintiff to recover some $142 386. 00 in counsel fees he paid to the defendant (Gellis Aff. , Exh. ; Cmplt. 4; 10- 20). Service of process on the defendant law firm was accomplished by delivering a copy of the summons and complaint to the Secretary of State pursuant to Business Corporation Law 9 306(b)(1). Some two years earlier , however December of 2009 , the defendant had re- Iocated its law offices , but failed to ," [* 3] ). update the file address maintained by the Department of State (Sabeti Aff. , ~~ 4445; Exh. Accordingly, the summons and complaint - claims it never received - were delivered by the Secretary of which the defendant State to the defendant' s former address; namely, " 99 Jericho Turnpike , Jericho , New York" (Sabeti Aff. , ~~ 44- 45) Significantly, in May of2011 , the plaintiff had commenced a substantively identical , prior action against " Sean Sabeti " individually. That action , however was dismissed by order of this Court dated September , 12 2011 , on the ground that the plaintiff had erroneously sued Sabeti in his individual capacity, instead of naming Sabeti' s professional corporation as the proper , party- defendant Diamond , J. , dated September 16 Wand 2011)(cf, Somer (Order of Rotondi 219 AD2d 340 , 343- 344). In the prior dismissed action, the plaintiff did not serve the Secretary of State , but instead , personally served process on the defendant at his current office address 3 Grace Avenue , Great Neck , New York" (Sabeti Aff. ~ 36). In December of 20 11 - and without knowledge that the plaintiff s action had been commenced - the defendant law firm instituted its own fee action as against both the plaintiff and the plaintiffs father , 45- 46)(see, Law Offce of Sean Sabeti , v , P. Joseph Delijani (Sabeti Aff. Parham Deljiani and Joseph ;" [* 4] Delijani Index No. 18123- 11 (Supreme Court Nassau County, 2011)). The defendant' s complaint alleges inter alia entitlement to approximately $77 927. in the counsel fees arising out of the same , post-judgment proceedings at issue in this action (see , Law Offce of Sean Sebati , pc., Parham Deljani and Joseph Delijani Index No. 18123- 11 (Supreme Court Nassau County, 2011))(Sabeti Aff. Exh. In March of2012 , and while the defendant' s related fee lawsuit was pending, the plaintiff made application for a default judgment pursuant to CPLR 3215(g) in this action. That application was granted and resulted in a March 23 2012 judgment , entered as against the defendant in the principal amount of $142 981.00 (Gellis Aff. , Exh. 1" According to Sean Sabeti - the defendant law firm s principal- prior to early April of 20 12 , he had no knowledge of this action or that a judgment of default had been entered therein (Sabeti Aff. , ~~ 46- 47). More particularly, Sabeti claims that on April 5 , 2012 , he received a mailed package from plaintiffs counsel in which the subject default judgment was enclosed (Sebati Aff. , ~~ 49- , 58). According to Sabeti , some two months earlier in February of2012 - and after his law firm was already in technical default - he received certain materials from the [* 5] plaintiffs counsel relating to the defendant- law firm s pending fee action , but , 50). plaintiffs counsel never mentioned the subject lawsuit (Sabeti Aff. , ~~ 46- After learning in April of2012 , that the default judgment had been entered the defendant promptly moved by order to show cause and voluminous supporting papers to inter alia vacate the judgment and dismiss the within action. Upon the record before the Court , the defendant' s motion should be granted in part to the extent indicated below. It is settled that " service of process on a corporate defendant by serving the summons and complaint on the Secretary of State pursuant to Business CorPoration Law 9 306 is valid service see also AD3d 527 , Perkins Dybo Realty Corp. v 686 (Shimel v 5 S. Halsey Food Corp. Yellow BookofN. 77 AD3d 640; Fulton Ave. Corp. cf., Peck 36 AD3d 881 , Inc. Weiss 44 AD3d 755). Moreover , the failure to maintain a current address with the Secretary of State is generally not an excuse for a default under CPLR 5015(a)(I)(Castle v Avanti , Ltd. Perkins v 686 , 86 AD3d 531; Peck Dybo Realty Corp. , supra 77 AD3d 640; Halsey Food Corp. , supra 36 AD3d 881; Franklin v. 172 Aububon Corp. 32 AD3d 454 455). Nevertheless , CPLR 317 " permits a defendant who has been ' served with a summons other than by personal delivery " to seek relief from a default upon a '" [* 6] showing that it did not receive actual notice of the summons in time to defend and has a meritorious defense 455, quotingfrom v. Wassertheil B.M Baking Co. , Inc. Rockland Bakery, Inc. 78 AD3d 1118 v. 172 Dutton Lbr. Elburg, LLC 94 AD3d 753; Aububon Corp. , supra 32 AD3d 454 455; Kaba Fleisher 83 AD3d 1080; Michelle Tenants Corp. Cohen , 1119; v. see generally, Eugene Di Lorenzo CPLR 317 Co. 67 NY2d 138 , 141- 142 (1986); Franklin Aububon Corp. , supra 32 AD3d 454 v 172 (Franklin 63 AD3d 1097 , 1098; v. Rios Starrett City, Inc. 31 AD3d 418). A defendant moving for vacatur of a default under CPLR 317 need not establish a reasonable excuse for the delay in answering or appearing 172 Aububon Corp. , supra Clover M Barrett , Pc. AD3d 753; see , Wassertheil 32 AD3d at 454 v. (Franklin Elburg, LLC, 94 Gordon 90 AD3d 973). v. The decision whether to set aside a default rests in the sound discretion of the Supreme Court v. AIV Ins. Co. v. (Pimento Rojas Calderon 40 AD3d 847; Westchester Medical Center 94 AD3d 844; v 163 Ocean Tenants Corp. 27 AD3d 410). Here , the defendant has established its entitlement to vacatur of its default Michelle Tenants , Corp. , supra 63 AD3d pursuant to CPLR 317 (see 1097 Kaba , supra 78 AD3d 1118 1098; Fleisher , Cohen 1119; Franklin v. 172 [* 7] Aububon Corp. , supra 32 AD3d 454 , 455). More specifically, the record establishes that service was made by delivery of process to the Secretary of State (see, Eugene Di Lorenzo rather than by personal delivery Co. , supra Kaba Fleisher at 142; , Inc. vA. C. Dutton Lbr. Michelle Tenants Corp. , , supra; Chen supra 63 AD3d 1097). The defendant has also asserted that the address on file with the Corp. v. cf., Thas 89 AD3d 599 v. (Newman Secretary of State at the time was incorrect Old Glory Real Estate Dayrich Trading, Inc. 78 AD3d 1163 , 1164). Further , there is no evidence that the defendant' s conduct was wilful or dilatory (Toll Brothers , Inc. v. Dorsch 91 AD3d 755 v 163 Calderon , 756; Ocean Tenants Corp. , supra 27AD3d 410 411), or that it was in any sense " deliberately attempt(ing) to avoid notice of the action AD3d 659 , 660 see v. , Eugene Di Lorenzo v. 99- (Girardo 27 Dutton Lbr. Co. , Realty, LLC, 62 supra 67 NY2d 138 141- 142) - an inference belied by defendant' s timely interposed opposition to the plaintiff s prior action. Nor does the record suggest that the defendant was at the time , aware of its failure to designate a new registered agent for service or that an old address was on file with the Secretary of State 908 909; HonAssoc. Ltd. Partnership, Kuen Lo (Tselikman v. Marvin Court, Inc. Gong Park Realty Corp. 16 AD3d 553; 33 Grosso AD3d MTO 12 AD3d 402 403). Notably, the evidence submitted [* 8] indicates that the plaintiff was aware at the time of the defendant' s actual place of (see, Eugene Di Lorenzo business v. Tselikman Marvin Court, 16 AD3d 553 , Inc. vA. Dutton Lbr. Co. , C. Inc. , supra; Hon- supra, at 141; Gong Park Realty Corp. Kuen Lo Aff. , ~ 36 43; Reply Aff. , ~ 65). supra)(Sabeti The defendant' s submissions also adequately alleged facts sufficient to demonstrate potentially meritorious defenses to the Kaba, supra 78 AD3d 1118 , 1119; Girardo v. 99- 27 Realty, LLC, supra , 62 Aububon Corp. AD3d at 660; Franklin the defendant' s promptness in moving to vacate RCDolner, LLC v. 172 , supra, 32 AD3d 454). Considering (Wonder Works Const. Corp. (Vinny 44 AD3d 526), the relatively short delay which ensued v. Petulla Contracting Corp. policy (Fleisher plaintiffs claims Ranieri 94 AD3d 751), and the " strong public v. (Fuentes " favoring resolution of actions on their merits Virgil 88 AD3d 643), the Court agrees that the defendant' smotion to vacate should be granted. The Court alternatively notes that the plaintiff s January 24 , 2012 , affidavit of additional mailing pursuant to CPLR 3215 (g), omits the statutory recital that the summons and complaint were mailed to the defendant by " first class mail" (Gellis )(see Aff. , Exhs. AD2d 375 AD3d 407; see also , Balaguer CPLR 3215(g)( 4)(i); v 1854 Schilling Maren Enters. , 302 Monroe Ave. Hous. Dev. Fund Corp. , 71 Admiral Ins. Co. v. Marriott Intern. , Inc. 67 AD3d 526; Bunch [* 9] Dollar Budget, Inc. 12 AD3d 391; Rafa Enters. Pigand Mgt. Corp. v. 184 AD2d 329). However , upon favorably viewing and accepting as true , the facts alleged in v. (Leon the plaintiffs complaint Martinez 84 NY2d 83 87- Bokhour 88 (1994); GTI Retail Holdings , Inc. 94 AD3d 682), the Court agrees that the averments made are sufficient at this early juncture to withstand a motion to dismiss pursuant (see also to CPLR 3211 Uzzle v. Partners , LLP 76 AD3d 703; Finkelstein , Feldman Nunzie Court Homeowners Ass , Inc. 70 AD3d 928 Beal Malik Oliver 29 AD3d 736). Additionally, and among other Gelfand 54 AD3d 910; , 929; things , the complex thicket of allegations and claims advanced by the defendant not all of which are relevant to the issues between the parties , nonetheless implicate factual issues which are not appropriately resolved on a motion pursuant to CPLR 3211(see , Bokhour v. GTI Retail Holdings , Inc. 94 AD3d 682). Further at this CPLR 3211 motion stage Kaufman 91 NY2d v. (Held 425 , 433 (1998)), a plaintiff is not obligated to demonstrate evidentiary facts to (see support the allegations contained in the complaint Country Store, Inc. 296 AD2d 455 686), since " , 456; Paulsen v. , Stuart Realty Co. v. Rye Paulsen 148 AD2d 685 w)hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (EBC 1, Inc. v. Goldman, Sachs [* 10] & Co. 5 NY3d 11 v. Knutt , 19 (2005); Metro Intern. , SA. 91 AD3d 915 916). The Court notes that 22 NYCRR 9 1400. 3 - which requires attorneys in matrimonial and/or domestic relations matters to execute and file written retainer (see agreements - has been applied to post-judgment enforcement matters Misc. Cohn Meirowitz , 2010 WL 4348274 , at 3 (Supreme Court see also 22 NYCRR 9 1400. 1 (" This Nassau County, 2010) part shall apply to * * * any action or proceeding * * * for divorce * * * or to enforce or modify a judgment or order in connection with any such claims , actions or proceedings cf, Seth Rubenstein , P. C. v Ganea 41 AD3d 54 , 60- 62). That branch of the motion which is , in effect , for a pre-answer order consolidating the within action with the defendant' s pending fee action , is denied (see Siegel with leave to renew after issue has been joined New York Practice ed. ), 9 128 , at 228). Lastly, in the exercise of its discretion , the Court finds that the imposition of a sanction is unwarranted Haase v. (see generally, Gelobter DelVecchio 90 AD3d 756 , 757; v. Fox 90 AD3d 832 , 833; Dime Sav. Bank of New York , FSB Zangiacomi 225 AD2d 515). However , both counsel are cautioned and reminded that the Court expects full compliance with its Part rules , the Uniform Rules applicable to this proceeding, and the Rules of Professional Conduct. [* 11] The Court has considered the parties ' remaining contentions and concludes that they are lacking in merit. Accordingly, it is the order to show cause by the defendant Law Office of Sean ORDERED Sabeti , P. , is granted to the extent that the judgment entered March 23 2012 is vacated , and the defendant' s motion is otherwise denied. The foregoing constitutes the decision and order of the Court. Dated: May 31 2012 HTERED JUN 05 2012 NASSAU c.OUNTIY COUtlTY ClERtf' S OFFICE

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