Renaissance Watch Co., LLC v Turobiner

[*1] Renaissance Watch Co., LLC v Turobiner 2013 NY Slip Op 51085(U) Decided on July 2, 2013 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2013
Supreme Court, Kings County

Renaissance Watch Co., LLC, Plaintiff,

against

Julian Turobiner, Bid Global LLC, Bid Global Limited a/k/a Bid Global, Ltd., Bid Global Pte. Ltd., Bid Global Limited and Bid Global Limited,, Defendants.



17001/12



Plaintiff Attorney: Levi Huebner & Associates, 478 Malbone Street, Suite 100, Brooklyn, NY 11225

Defendant Attorney: Grimes & Zimet, 45 South Greeley Avenue, Chappaqua, NY 10514

David I. Schmidt, J.

Upon the foregoing papers, Renaissance Watch Co., LLC (plaintiff), moves pursuant to CPLR 3215, for default judgment separately against defendant Julian Turobiner (Turobiner) and against defendants Bid Global LLC (Bid US), Bid Global Limited, also known as Bid Global, Ltd., (Bid Hong Kong), Bid Global Pte. Ltd., Bid Global Limited and Bid Global Limited [FN1] (collectively, defendants). Defendants move, pursuant to CPLR 503, 510 and 511, to change the action's venue to New York County.

Background

(1)

Plaintiff commenced this action on August 17, 2012 and brought claims for breach of contract, goods sold and delivered, accounts stated, conversion and fraud. Plaintiff alleged that it sold five watches to Turobiner on July 17, 2010 for $43,750, cumulatively, with payment due within 30 days. Plaintiff acknowledged that defendants paid for one of the watches [FN2] and returned another one on September 28, 2010, but plaintiff contended [*2]that defendants still owed $30,500 for the remaining three watches. Plaintiff claimed that it had demanded payment from defendants and that defendants had refused to pay.

(2)

Plaintiff now moves for default judgment against Turobiner and separately against the other defendants (the Corporate Defendants).[FN3] It argues that it properly served the summons and verified complaint personally on Turobiner on August 18, 2012 and additionally mailed Turobiner a summons and complaint on August 24, 2012. Furthermore, it asserts that it served each of the Corporate Defendants by serving the New York Secretary of State on December 11, 2012 and mailing a copy to each corporate office on the following day. Plaintiff argues that it must be granted default judgment as defendants' times to appear, answer or raise objection expired without response.

(3)

Defendants move to change the action's venue to New York County. Defendants argue that plaintiff's primary office is in New York County and that defendants do not reside, maintain an office or conduct business in Kings County. Furthermore, defendants contend that any business they have conducted with plaintiff occurred outside the State of New York. Defendants assert that they mailed a demand for change of venue to plaintiff's counsel on September 27, 2012, which plaintiff rejected and returned. Defendants subsequently served their motion to change venue on October 11, 2012.

(4)

Plaintiff, in opposition to defendants' change venue motion, contends that defendants' defaults bar changing venue. Plaintiff further argues that defendants' demand should be treated as made on September 25, 2012, as dated, instead of September 27, as indicated on the affidavit of service, because that affidavit also misspelled the name of plaintiff's counsel and referred to him as "attorney for the Defendant." If the demand were served on September 25, 2012, urges plaintiff, then defendants made their change venue motion 16 days after the demand, and thus one day late. Plaintiff additionally maintains that defendants "simply cannot move for a change of venue when Plaintiff has a prior Default Motion pending."

(5)

Turobiner, in reply and in opposition to plaintiff's default judgment motions, states that he was personally served with the summons and verified complaint on August 18, 2012 while on a business trip to New York. He explains that he "travel[s] extensively for business and, therefore, had limited time and limited access to corporate records in order to direct properly [his] attention to retaining counsel with respect to this lawsuit." Turobiner recounts that he first retained a law firm in Arizona (his state of residence) and then retained his present New York counsel on September 25, 2012, who thereafter prepared and served a notice of appearance and demand for change of venue. Turobiner stresses that he did not "intentionally or willfully attempt to ignore this action." [*3]

Furthermore, Turobiner contends that he did not purchase the watches from plaintiff, but merely took them on consignment and agreed to attempt to sell them on plaintiff's behalf. Turobiner asserts that plaintiff's officer prepared an invoice form for the watches only because that officer did not have his "memo" forms with him, which are "used for transactions among people in the jewelry industry, such as dealers, wholesalers and auctioneers." Turobiner further explains that he sold one of the watches and paid plaintiff for it, returned another of the watches, and, with plaintiff's permission, left the three others in "a secured place with other jewelry" in Kuala Lumpur. Turobiner states that "the jewelry that [he] had left in Kuala Lumpur was stolen and [he] reported the theft to the police." He asserts that he subsequently apprised plaintiff of the theft "and explained to him that he should put in a claim under his insurance." Finally, Turobiner argues that the underlying purported invoice refers only to Bid Hong Kong and not to any of the other defendants.

Defendants then concede that they "should have served an answer, a notice of appearance or otherwise moved in this action on or before September 7, 2012," but urge that they did serve a notice of appearance on September 27, 2012 and that plaintiff did not reject such notice, though it did reject the accompanying change of venue demand. Defendants argue that the 20-day [FN4] delay in appearing caused plaintiff no prejudice and that Turobiner was often overseas and "tended to this matter as quickly as he could under the circumstances." They contend that plaintiff's merchandise was delivered only to Bid Hong Kong and that even that transaction was a consignment rather than a sale, which facts, they maintain, bar plaintiff from recovering. Defendants argue that they did not receive any of plaintiff's purported default judgment motions until after they had appeared and that the court rules requiring motion paper filing before the return date necessitate treating plaintiff's purported earlier motions as nullities. Finally, defendants include a corrected affidavit of service for their demand for change of venue. They contend that they served the demand for change of venue on September 27, 2012 and that their change venue motion 14 days later (on October 11) was thus timely.

(7)

Plaintiff replies that defendants admit they should have served an answer or notice of appearance by September 7, 2012 and that they failed to meet that deadline. Plaintiff contends that its counsel told defendants' counsel that it would extend defendants' time to answer if they agreed to waive jurisdiction and venue objections, but that defendants rejected this offer. Plaintiff urges that Turobiner admits service of the summons and complaint upon him and further urges that it was not required to reject defendants' notice of appearance to gain a default judgment. Plaintiff further argues that defendants have failed to raise any meritorious defenses.

Discussion

Plaintiff's Default Judgment Motion

"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or [*4]appearing" (Green Tree Servicing, LLC v Cary, 106 AD3d 691, 692 [2013] [internal quotation marks omitted]; see also Dupps v Betancourt, 99 AD3d 855, 855 [2012]; King v King, 99 AD3d 672, 672 [2012]). Furthermore, a plaintiff seeking a nonappearance default judgment against a natural person for nonpayment of a contractual obligation must, pursuant to CPLR 3215 (g) (3), mail a copy of the summons to that defendant's residence.

A defendant seeking to defeat a plaintiff's default judgment motion based on the defendant's failure to appear or timely serve an answer must then demonstrate a reasonable excuse for the delay and a potentially meritorious defense (Karalis v New Dimensions HR, Inc., 105 AD3d 707, 708 [2013]; King, 99 AD3d at 672; Wassertheil v Elburg, LLC, 94 AD3d 753, 753 [2012]). Public policy favors resolving cases on their merits, and thus a court has discretion to deny a default judgment motion where a defendant demonstrates (1) a potentially meritorious defense and (2) a short, unintentional delay in appearing that caused the plaintiff no prejudice (see Jennings v Queens Tribune Publs., LLC, 101 AD3d 1086, 1087 [2012]; Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751, 752 [2012]; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011]; Hense v Baxter, 79 AD3d 814, 815 [2010]).

Here, plaintiff urges granting it default based on Turobiner's service of a notice of appearance 20 days after his time to appear expired. Defendants contend, however, that the delay was not willful and that Turobiner, given his busy schedule, retained counsel and appeared in the action as expediently as possible. They further assert that plaintiff gave the subject watches to defendants as a consignment rather than a sale and that the watches were subsequently stolen. If this version of events were found true, it could potentially disprove any alleged contractual obligation to pay, thus defeating the breach-of-contract, goods-sold-and-delivered and accounts-stated claims (see Rodkinson v Haecker, 248 NY 480, 484-85 [1928] ["[a]n account stated is nothing more or less than a contract express or implied between the parties"]; Brualdi v IBERIA, Lineas Aereas de España, S.A., 79 AD3d 959, 960 [2010]; Benfield Elec. Supply Corp. v C & L El. Controls, Inc., 58 AD3d 423, 423-24 [2009] [treating goods-sold-and-delivered action as breach-of-contract claim]), and could also potentially disprove that defendants harbored the intent necessary for the conversion or fraud claims (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006] [holding conversion requires intentional assumption of control of plaintiff's personal property]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011] [holding fraud requires showing of purposeful inducement]). Consequently, plaintiff's default judgment motion must be denied to allow the action's resolution on its merits.[FN5]

Defendants' Change Venue Motion

An action's venue generally should, under CPLR article 5, be a county where at least one party resided when the action was commenced (CPLR 503 [a]; see Zervos v Vargas, 105 AD3d 1040, 1040 [2013]; Negron v Nouveau El. Indus., Inc., 104 AD3d 655, 656 [2013]). CPLR 511 requires a defendant seeking change of venue to serve a demand for change of venue on the plaintiff before or with the answer, and, if plaintiff does not consent to the change within five days, to thereafter serve a change venue motion within 15 days of the demand (CPLR 511 [a], [b]; Zervos, 105 AD3d at 1040-41). [*5]A plaintiff that commences an action in a venue improper under CPLR article 5 has thus forfeited the right to select a venue and a defendant's change venue motion must then be granted as of right (Zervos, 105 AD3d at 1041; Negron, 104 AD3d at 656-57).

Here, defendants move to change venue on the basis that plaintiff is the only New York State resident and that plaintiff resides in New York County.[FN6] Plaintiff, in opposition, makes no arguments regarding the merits of defendants' motion, instead contending merely that defendants' default bars the motion and that defendants made the motion more than 15 days after serving the demand. Defendants, however, made a timely motion to change venue as their affidavits of service indicate service upon plaintiff's counsel of the demand to change venue, with the notice of appearance, on September 27, 2012 and further indicate service of the change venue motion 14 days later on October 11, 2012 (see CPLR 511 [b]). Plaintiff's contention that defendants actually served the demand on September 25, 2012 fails to overcome defendants' affidavit of service, particularly as plaintiff noted in its letter rejecting the demand that it was postmarked September 28, 2012. Consequently, defendants' change venue motion must be granted. Accordingly, it is

ORDERED that plaintiff's default judgment motion is granted only to the extent that defendants are ordered to serve an answer or answers upon plaintiff within 20 days of service of this order with notice of entry, and is otherwise denied; and it is further

ORDERED that the venue of this action is changed from this court to the Supreme Court, County of New York, and the Clerk of the County of Kings is directed to transfer all papers on file in this action, bearing index number 17001/12, to the Clerk of the County of New York upon service of a copy of this order with notice of entry and payment of appropriate fees, if any.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The verified complaint indicates that the first "Bid Global Limited" is a limited liability company in the United Kingdom whereas the second "Bid Global Limited" is a limited liability company in South Africa.

Footnote 2: Plaintiff recounted that the sale price of the watch was $8750 and defendants paid $8000, yet plaintiff treated this as payment in full.

Footnote 3: Plaintiff states that it served a default judgment motion against Turobiner on September 24, 2012 and it includes, in its reply, an affidavit of service indicating such service. Plaintiff submits additional affidavits of service that appear to indicate subsequent service on December 27, 2012 and January 31, 2012. Defendants, however, deny receiving such motion and, indeed, the court received no copy of this motion until it was filed on February 19, 2013. Plaintiff served a separate, substantively identical motion for default judgment against the Corporate Defendants on March 1, 2013 and filed that motion on March 13, 2013.

Footnote 4: Defendants erroneously refer to the delay as being only 19 days.

Footnote 5: This conclusion moots considering defendants' other arguments opposing plaintiff's default judgment motion.

Footnote 6: Turobiner asserts, in his affidavit in support of the motion, that plaintiff's primary office is at 37 West 47th Street in Manhattan and the purported invoice underlying this action indicates plaintiff's address as 66 West 47th Street in Manhattan. The verified complaints indicate that plaintiff's primary office is in the "County of York." No such county exists in this state, but plaintiff does not contest that its primary office is, in fact, in the County of New York.