Wells Fargo Fin. Leasing, Inc. v South Asian Youth Action (SAYA), Inc.
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Wells Fargo Fin. Leasing, Inc. v South Asian Youth Action (SAYA), Inc. 2012 NY Slip Op 33987(U) December 13, 2012 Supreme Court, Queens County Docket Number: Index No. 701534/12 Judge: Robert J. McDonald 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] FILED: QUEENS COUNTY CLERK 12/19/2012 INDEX NO. 701534/2012 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/19/2012 , SHORT FORM ORDER FORM ORDER SHORT COUNTY NEW SUPREME COURT QUEENS COUNTY COURT:: QUEENS YORK SUPREME NEW YORK McDONALD J. McDONALD HON. ROBERT ROBERT J. Justice Justice - - - - - - - - - - - - - - - - -- -- -- x X E N T. P R E S PRE SEN T WELLS LEASING, FINANCIAL LEASING, FARGO FINANCIAL WELLS FARGO INC., Plaintiff, Plaintiff, against --- against SOUTH ASIAN (SAYA), INC., ACTION (SAYA), YOUTH ACTION ASIAN YOUTH SOUTH d/b/a d/b/a SOUTH ASIAN YOUTH ACTION d/b/a ACTION YOUTH d/b/a SOUTH ASIAN SAYAr SAYA! lAS PART 34 IAS PART Index No.: Index 701534/12 701534/12 Motion Motion Date: 12/6/12 12/6/12 Motion Motion No.: 112 Motion Seq.: Motion 11 ~ •.•• ~~., ') 0" 0 ';;''';#0 1:..":;,) •.• •-1 -1 r'1 r-.::. ~ - t::J CJ fT) fT1 ("') c-, Defendants. Defendants. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x X \.0 ~. -,.-. .- ",. ::x ::x J::,,. motion: numbered 1 to 13 on this motion: papers numbered following papers The following ...g Papers 'P. Papers Numbered N Numbered N •..1,,.-:,'" Plaintiff's Notice Motion-Affirm ationNotice of Motion-AffirmationPlaintiff's bit{s) Affidavit(s)-Service-Exhibit(s) Service-Exhi Affidavit(s)Defendant's Notice of Cross Motion-AffirmationMotion-Affirm ationCross Defendant's Notice Affidavit(s)-Exhibit(s) Affidavit{s)- Exhibit(s) Plaintiff's Reply Affirrnation-E xhibit(s) Reply Affirmation-Exhibit(s) Plaintiff's Opposition to Defendant's Plaintiff's Opposition Reply to Plaintiff's Defendant's Reply Cross-Motion Cross-Motion 1-4 5-8 5-8 9-11 12-13 Plaintiff, by order of the Court, seeks an order motion, seeks notice of motion, by notice Plaintiff, favor of judgment in favor pursuant to CPLR § ~ 3215, granting default judgment granting aa default to CPLR pursuant balance of plaintiff against defendant defendant (SAYA!) (SAYA!) for the balance plaintiff and against agreement in the payments lease agreement commercial lease a commercial under a remaining due under payments remaining calculated 28, sum of $59,850.00 plus interest from March 28, 2012 calculated at March interest plus $59,850.00 sum of value residual the rate of 1-1/2% per month, plus the residual value of the plus per 1-1/2% the rate of sum taxes equipment in the sum of $4,797.98, plus taxes in the sum of plus $4,797.98, equipment in reasonable plus $475.00, of $5,737.51, plus a late fee the sum $475.00, plus reasonable sum in $5,737.51, plus a and costs and plus costs attorneys' fees fees in the sum of $1,560.00, $1,560.00, plus attorneys' disbursements.s. disbursement Defendant order cross-motion, for an order notice of cross-motion, by notice moves by Defendant moves time for extending the time pursuant CPLR § ~ 3012(d) and CPLR § ~ 317, extending and CPLR to CPLR pursuant to 11 ... ,' , , 0 :.,;: :0'~ , ) [* 2] V v reasonable excuse defendant to appear appear on on the grounds grounds of aa reasonable excuse for the defendant judgment. default a and, denying denying plaintiff's plaintiff's motion motion for a default judgment. delay; and, reply to Plaintiff submits submits aa reply reply and and defendant defendant submits submits aa reply Plaintiff motion. plaintiff's opposition opposition to defendant's defendant's cross cross motion. plaintiff's The underlying underlying action breach of aa written written commercial commercial action is for breach The which plaintiff agreement lease lease agreement agreement in which plaintiff as lessor lessor executed executed aa agreement In defendant. with agreement commerical written lease agreement with defendant. lease written commerical consideration of the leasing leasing equipment, equipment, the defendant defendant agreed agreed to consideration consecutive 63 in $59,8850.00 of pay Wells Fargo Fargo the sum sum $59,8850.00 63 consecutive pay to Wells monthly per month month over over the course course of 63 63 payments of $950.00 per monthly payments consecutive months. Defendant thereafter thereafter defaulted defaulted on the lease lease Defendant months . consecutive agreement. agreement. and an A summons summons and and complaint complaint were were filed filed on August August 7, 7, 2012 and A affidavit service was was filed filed on on August August 22, 22, 2012. 2012. The it of service affidav defendant, aa not-for-profit not-for-profit corporation corporation had had thirty thirty days days in which which defendant, to answer answer or until September 21, 21, 2012. 2012. At the filing filing of until September plaintiff's motion, motion, defendant defendant was over over one month month late late to appear appear plaintiff's seeking defendant now now cross-moves cross-moves seeking an answer. The defendant interpose an answer. or interpose order of the Court Court granting granting them extended period period of time time of 30 them an extended order days to answer answer plaintiff's plaintiff's complaint complaint and and plead plead aa meritorious meritorious days defense and and counter-claims. counter-claims. Defendant maintains maintains that that plaintiff plaintiff Defendant defense practices. predatory practices. engaged in fraudulent fraudulent and and predatory has engaged support of the cross-motion, cross-motion, defendant defendant submits submits the In support Youth affidavit of Udai Executive Director Director of South South Asian Asian Youth Udai Tambar, Executive affidavit answer to failure Action (SAYA1)who maintains that defendant's failure answer defendant's maintains Action (SAYA!)who intentional nor the complaint complaint in aa timely timely manner manner was neither neither intentional nor the the of part the on willful and and that that there there was never never an intent intent part willful the and defendant to abandon abandon the defense defense of this action action and defendant prosecution of the counter-claims. counter-claims. prosecution Mr. Tambar Tambar maintains maintains that SAYA! inadvertently inadvertently failed failed to update present address address with with the Secretary Secretary of State State and and as aa update its present The result defendant defendant did not receive receive the summons summons and and complaint. complaint. did not result first notice notice they they received received regarding regarding this lawsuit lawsuit was plaintiff's plaintiff's first notice of motion motion for aa default default judgment received on on October October 11, 11, judgment received notice 2012. Mr. Tambar Tambar contends contends that they they immediately immediately contacted contacted an 2012. member who board member attorney who former board who in turn turn contacted contacted who was aa former attorney Fargo After Wells Fargo's counsel. After discussions discussions with with Wells Wells Fargo Fargo's counsel. Wells board members members contacted contacted defendant's defendant's current current counsel. counsel. failed, the board plaintiff's adjourn to Ultimately, plaintiff and defendant agreed adjourn plaintiff's agreed defendant and Ultimately, plaintiff motion for aa default default judgment November 16, 16, 2012. 2012. judgment to November motion plaintiff Defendant maintains maintains that plaintiff Defendant them fraudulently induced induced them EZ Docs, Inc. fraudulently 2 2 Wells Wells Fargo Fargo and and its agent agent agreement an to sign sign an agreement that that [* 3] .....• would be that would monies that incentives and contained certain certain rebates, and monies rebates, incentives contained leasing into entering issued to them in consideration for entering into the leasing consideration issued to leasing that maintains agreement (Exhibit D). Defendant maintains that the leasing Defendant agreement contends however contends Inc. however agreement is in the custody custody of EZ Doc. Inc. agreement Inc. with EZ Doc. Wells Fargo any relationship relationship with disavows any Fargo disavows Wells case load, his case that due to his Counsel maintains that defendant maintains Counsel for defendant their update their Hurricane Sandy, the failure failure of defendant defendant's1 s to update Hurricane complexity of address with Secretary of State State and and due to the complexity the Secretary with the address and answer and an answer interpose an this action has properly interpose been able to properly has not been this action so. days (30) requests from the Court a period of (30) days to do so. period a Court requests answer the appear or answer "A defendant failed to timely timely appear defendant who has failed "A and default complaint must excuse for the default and reasonable excuse a reasonable provide a must provide complaint a opposing a when opposing demonstrate a defense to the action, when meritorious defense a meritorious demonstrate failure to upon its failure motion for leave leave to enter judgment upon default judgment a default enter a motion for answer or to time to answer appear or answer and extend the time moving to extend and moving or answer appear v. Moriano v. answer." Moriano compel the untimely answer." acceptance of an untimely the acceptance compel Dep 1 t 2010) Provident New (2d Dep't 747, 899 (2d A3d 747, Bancorp, 71 A3d York Bancorp, New York Provident NYS2d 649, 824 NYS2d AD3d 649, quoting Lipp v. Port Auth. of NY and NJ, 34 AD3d NY and quoting Lipp (2d Dep't Dep't 2006). 671 (2d failure to Plaintiff defendant's failure maintains that defendant's Plaintiff maintains a not a current address address with Secretary of State State is not with the Secretary current answer . timely answer. excuse failure to timely default or failure excuse for aa default update its update reasonable reasonable extension "It is within court's power grant such such an extension power to grant within the court's ~rt is service was not where it is delay in service .. that the delay established. is established. where it prejudice to the any prejudice willful or lengthy lengthy and cause any did not cause and that it did willful or also [1981]; also NY2d parties." A & J Concrete Corp. v Arker, NY2d 870 54 Concrete J & parties." A Design, MMG see Maurice v Maurice, 78 AD3d 792 [2d Dept. 2010]; MMG Design, [2d AD3d see Maurice v Maurice, Kasaks, 24 Twersky v Kasaks, Inc. [2d Dept. 2006]; Twersky AD3d 823 [2d Melnick, 35 AD3d v Melnick, Inc. v AD3d 657 [2d [2d Dept. 2005]). AD3d devoid papers are devoid reply papers Furthermore, and reply motion and plaintiff's motion Furthermore, plaintiff's any in it prejudiced delay prejudiced of any defendant's delay any argument that the defendant's any argument of this of adjournment way. In fact, fact, both stipulated to an adjournment parties stipulated both parties way. In In November 14, within 29, 2012 to November 14, 2012. October 29, motion from October within motion result a result plaintiff as a consideration of the lack lack of prejudice prejudice to plaintiff consideration meritorious · potentially meritorious of the short delay, the existence existence of aa potentially the short of cases resolution of cases defense, and favoring the resolution policy favoring public policy the public and the defense, accept plaintiff to accept on the court is inclined compel plaintiff inclined to compel the court merits the the merits on Exhaust Sys. Inc., Friends Exhaust an defendant. Wiesel v. Friends Wiesel v. answer from defendant. an answer 2010).. 71 AD3d Dep't 2010) (2d Dep't AD3d 1006, 1007 (2d 71 delivery of through delivery Moreover, defendant who served through who was served Moreover, the defendant not did not they that process to the Secretary of State established that they did established State process to the Secretary defend. time receive personal notice of the summons time to defend. in summons receive personal notice 3 3 [* 4] that the Furthermore, there there is no basis basis to conclude conclude that Furthermore, of notice avoid defendant deliberately attempted to avoid notice the action. action. attempted deliberately defendant failure notice on There is no evidence that defendant was notice of the failure defendant evidence There old an that or service for designate aa new new registered agent service old registered agent to designate v. Calderon address was on file with Secretary of State State (see (see Calderon v. with the Secretary address Tselikman Dep't 2006); Tselikman Ocean Tenants Tenants Corp., 27 AD3d AD3d 410 (2d (2d Dep't 163 Ocean nd Dep't v. Marvin Court, Inc., AD3d 908 (2 (2nd Dep't 2006). Inc., 33 AD3d v. Marvin judgment in default judgment a default Accordingly, plaintiff's motion for a plaintiff's motion Accordingly, and it is favor of plaintiff and against against defendant defendant is denied; denied; and plaintiff and favor further further ORDERED, that defendant's defendant's cross-motion cross-motion is granted granted to the ORDERED, and extent that defendant is directed directed to serve serve an answer answer and that the defendant extent counter-claims upon upon plaintiff within 30 days of the date date of this plaintiff within counter-claims counsel . order with entry on opposing opposing counsel. notice of entry with notice order papers responsive papers Plaintiff is given given leave leave to serve serve any responsive Plaintiff necessitated by the verified answer within after service service within 20 days after verified answer necessitated hereon. of aa copy copy of the order order to be entered entered hereon. Dated: Long Long Island Island City, NY Dated: December 13, 13, 2012 December rIA ROBERT J. J. McDONALD McDONALD ROBERT J.S.C. J.S.C. 4 4
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