Matter of Cachay v Brooks

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Matter of Cachay v Brooks 2013 NY Slip Op 34213(U) September 4, 2013 Supreme Court, New York County Docket Number: 113232/11 Judge: Paul Wooten 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] SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY ... PRESENT: _.;. .:::H..=.O.::..;.N:::.. .=-.P...-..A.=-::;:U~L. . W . . .___o___o___T___E___ N_ _ PART 7 Justice ·ANTONIO J .. CACHAY, Individually and as ·_inis.~rator of the Estate of · · :·A··.'·d·.··m. . .· .• CACHAY, Decease~ialntiffs, SYLVIELED f' . -against- RK'S OFFlCE Defendant. COUNTY CLE ORK · 002 MOTION SEQ. NO. SEP 09 20\3 NICHOLAS BROOKS, · 113232111 INDEX NO • NEW'< . The following papers numbered 1 to 3 were read on this motion by the petitioner to vacate the default judgment, vacate the note of issue and stay this action pending tile resolution of the related criminal procee(ling. PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ••• 1 ·Amswering Affidavits - Exhibits (Memo)__________ 2 Rep~~g~davtts(Rep~Mem~-·~------~--~-~~-~3---~ Cross-Motion: [] Yes II No i . ~ . i,t · .In this action sounding in intentional .negligence and wrongful death, Nicholas Brooks . ·(defendant), prose and incarcerated, moves to vacate the default judgment entered against him, to vacate the Note of Issue and to stay this proceeding, pursuant to CPLR 2201, pending . the resolution of the related criminal action. Antonio J. Cachay, Individually and as Administrator of the Estate of Silvie Cachay, Deceased, (plaintiffs) are in opposition to defendant's motion. BACKGROUND .. Plaintiffs instituted this action by the filing of a Summons and Verified Complaint on or abou~ N_ovember 22, 2011. Subsequently, by a Decision and Order of this Court dated June 4, 2012, plaintiffs were granted a default judgment as against the defendant for his failure to answer. move or otherwise res~ond to the Summons and Verified Complaint. Pursuant to the ._direc.tives in this Order, plaintiffs filed the Note of Issue on or about July 20, 2012, and the case Page 1 of 4 [* 2] is presently on the trial calendar for an inquest. On or about September 6, 2012, defendant made the herein motion to stay the instant proceeding and to vacate the default judgment and Note··of Issue. Defendant states that the reason for the delay in bringing this motion is because he is incarcerated and proceeding pro· se. Furthermore, defendant maintains that he wrote a letter to plaintiff's counsel as well as his multiple attempts with the clerk to file this motion ·properly~ As such, it took him four attempts before properly filing the instant motion. Purthern:tore, defendant alleges that he sent a letter to plaintiffs' counsel after discovering that the plaintiffs were bringing a civil action against him, to which he received no response. He also proffers that after learning about plaintiff' motion for a default judgment against him, he went to the law library at the correctional facility, where he is incarcerated for assistance. After doing so defendant maintains that his first attempt to seek a stay was rejected by the Clerk of the .court as it was not notarized, and then it was rejected on a second attempt because he did not attach the requisite fee for the motion. This pattern continued for approximately eight months, according to the defendant, until he was able to properly file the herein motion. ·· In support of his motion defendant maintains that he intends to assert his Fifth Amendment right during this proceeding. which he proffers is an important consideration for the Court in.deciding a case for a discretionary stay. In his Affidavit of Merit, dated October 19, 2012, defendant states that once the facts are heard and the related criminal action is completed, these facts will provide ample evidence to contradict the allegations in the herein civil proceeding. To that end he requests that the default entered against him be vacated and t~·is matter stayed so that he can, after the resolution of the criminal matter, represent himself properly and argue the facts. In opposition, plaintiffs proffer that the defendant's motion must be denied and this matter SE!t down for an inquest on the basis that there is an uncontested default judgment which has been entered against him, and on the basis that the defendant has no standing to seek a Page 2 of 4 [* 3] stay of this action. Plaintiffs also proffer that a copy of the motion papers have yet to be served upon them, and plaintiffs did not see the motion papers until the initial return date of the motion ·ren_dering this motion procedurally defective. DISCUSSION The Supreme Court may grant a stay of a proceeding, pursuant to CPLR 2201, in a . proper case and upon such terms as may be just. Granting a stay of a civil court action ·pending the resolution of a related criminal action rests with the sound discretion of the trial ~ourt {see Matter of Kopf, 169 AD2d 428 [1st Dept 1991]; Britt v International Bus Servs, 255 AD2d 143, 144 [1st Dept 1998]). In considering whether to grant a discretionary stay "pending the resolution of a related criminal matter, a court should weigh 'the risk of inconsistent a~judi~ations, application of pr~of and potential waste of judicial resources (Access Capital, 111 Inc. v-DeCicco, 302 AD2d 48, 51 [1st Dept 2002], citing Britt v International Bus Services, Inc., . 255.AD2d 143 [1st Dept 1998]}. 1 · By letter dated July 11, 2013, plaintiffs counsel informed the Court that after a month · long criminal trial before the Honorable Bonnie Wittner, defendant was convicted of murder in ,. ,/' .. ":·the second degree of Sylvie Cachay. As such the portion of defendant's motion seeking to stay the herein civil action pending the resolution of the criminal matter is denied as moot. In turning to the portion of defendant's motion which seeks to vacate the default .judgment rendered against him, "(a] defendant seeking to vacate a default under this provision · .must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and ·a. meritorious defense to the action" (Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., . 67 NX2d 138, 141 [1986]; Goldman v Cotte~, 781 NYS2d 28 [1 Dept 2004]). Here, defendant proffers the reasonable excuse for the delay in that he is incarcerated and proceeding pro se. However, defendant does not proffer a meritorious defense as he merely maintains that he . intends to plead the fifth in this action. As such defendant's motion is denied in its entirety and Page 3 of 4 [* 4] .the matter. ~hall proce~d to an. inquest. .CONCLUSION · Accordingly it is he.reby. . . _:ORDERED.that the porti~n of the motion by defendant Nicholas Brooks, seeking· an ... . ; order._staying: the. herein .action pending· the re$olution :of ~lie reiat~d criminal action is denied as moot; and it is further, · · . ORDERED that the portion-. of the-motiory ~Y defen~ant Nicholas Brooks, seeking an . . order vacating Jhe default entered against him as well as the Note of Issue is denied; and it is further,. ·· .ORDERgo that plaintiffJs ~irected to serve a copy. .of this Order With Notice of Entry . . ~ ' ' . . upon the. defendant. · J"his constitutes ·the -Decision and Order of the· Court · . FILED SEP o:_9 2013 COUNTY CLERK'S OFFICE NEW YORK . Dated~ . 9"fJ; ~ UJ!J · ·Fl~AL.DISPOSITION 11.NON~FINAL:·DISPOSITION . ·CheckJf·appropri.ate: : 0 DO'NOT.POST Q REFERENCE · Check one: ·D Page4 of 4

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