Nicalucabry, LLC v Yogorino NY, Ltd.

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Nicalucabry, LLC v Yogorino NY, Ltd. 2017 NY Slip Op 31480(U) July 10, 2017 Supreme Court, New York County Docket Number: 161014/2015 Judge: Erika M. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:55 AM 1] NYSCEF DOC. NO. 65 INDEX NO. 161014/2015 RECEIVED NYSCEF: 07/14/2017 SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NEW YORK NICALUCABR Y, LLC, Index No.: 161014/2015-Plaintiff, DECISION/ORDER -againstYOGORINO NY, LTD, YANA KORS, and VY ACHESLA V GRINSHTEIN, Defendants. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Notice of Motion and Affidavits/Affirmations/ Memos of Law annexed Notice of Cross-Motion and Affidavits/ Affirmations/Memos of Law annexed Numbered 2 ERIKA M. EDWARDS, J.: Defendants Yogorino NY, LTD' s and Yana Ko rs' motion to vacate and set aside their default in appearing and opposing Plaintiffs motion decided on September 20, 2016; to vacate and set aside the monetary judgment entered against them on September 20, 2016; or in the alternative, grant leave and/or additional time to submit opposing papers to Plaintiffs Motion dated May 23, 2016 is GRANTED in part. Plaintiffs cross-motion for entry of judgment against the Defendants is DENIED. This action arises from the alleged default under the terms of a commercial lease by the commercial defendant Yogorino NY, LTD ("Y ogorino") and individual defendants Yana Kors ("Kors") and Vyacheslav Grinshtein ("Grinshtein"). The action was commenced by electronic service of a Summons and Complaint on or about October 27, 2015. On or about December 16, 2 of 5 [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:55 AM 2] NYSCEF DOC. NO. 65 INDEX NO. 161014/2015 RECEIVED NYSCEF: 07/14/2017 2015, Defendants Yogorino and Ko rs interposed an Answer through their previous attorney. Defendant Grinshtein never answered the complaint or otherwise appeared in this action. On May 24, 2016, Plaintiff moved for summary judgment against Defendant Kors and default judgment against Defendant Grinshtein, as guarantors, on the second cause of action for base and additional rent owed and on the fourth cause of action for attorney's fees (motion sequence 001). Per multiple stipulations between Plaintiff and previous. counsel for Defendants, opposition to the motion was eventually extended to July 25, 2016. Since previous counsel failed to oppose the motion, Defendants retained new counsel who filed a "Consent to Change Attorney" on July 28, 2016. New counsel for Defendants argues that he did not have the opportunity to timely· submit opposition to the motion. Plaintiff argues that the motion was administratively adjourned by the motions support office on three subseq~ent dates which resulted in a final adjournment date of September 9, 2016. On September 9, 2016, the motion was marked as fully submitted without opposition. The court granted the motion without opposition on September 20, 2016. Defendants Yogorino and Kors now move to' vacate and set aside the court's September 20, 2016 Decision and Order or alternatively for leave to submit opposition papers to motion sequence 001. Plaintiff opposes the instant motion and cross-moves for entry of judgment against Defendants. New York courts favor resolution of actions on their merits rather tha.n on default (Picinic v Seatrain Lines, Inc., 117 AD2d 504, 508 [I st Dept 1986]). As such, there is a liberal policy towards "opening default judgments in furtherance of justice so that parties may have their day in court" (id.). To vacate a default judgment, defendant must demonstrate: (1) a reasonable excuse for the default; and (2) a meritorious defense to the action (Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 [I st Dept 2001]). "Assessment of the sufficiency of the excuse proffered for the delay and the adequacy of the merit of the action are consigned to the sound 2 3 of 5 [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:55 AM 3] NYSCEF DOC. NO. 65 INDEX NO. 161014/2015 RECEIVED NYSCEF: 07/14/2017 discretion of the court" (Bengal House Ltd. v 989 3rd Ave., Inc., 118 AD3d 575, 576 [1st Dept 2014]). "The determination whether a reasonable excuse has been offered is sui generis and ----should be based on all relevant factors, among which are the length of the delay chargeable to the movant, whether the opposing party has b.een prejudiced, whether the default was willful, and the strong public policy favoring the resolution of cases on the merits" (Chevalier v 368 E. I 48th St. Assoc, LLC, 80 AD3d 411, 414 [1st Dept 2011 ]). Law office failure may constitute a reasonable excuse for vacating a default judgment (Mutual Marine Office, Inc. v. Joy Const. Corp., 39 AD3d 417 [1st Dept 2007]). The Court finds that Defendants established a reasonable excuse for their failure to timely oppose the motion for summary and default judgment and they have set forth a potential meritorious defense. I.n addition, there is no evidence that Plaintiff suffered any prejudice and the delay was relatively brief. Therefore, this Court grants Defendants Yogorino's and Kors' motion to the extent that Defendants Yogorino and Kors have leave to file opposition to Plaintiff's motion for summary judgment and default judgment dated May 23, 2016 (motion sequence 001) by August 11, 2017. If Defendants file their opposition by August 11, 2017, Plaintiff has leave to file a reply by August 25, 2017. The parties shall appear for oral argument on the motion for summary judgment on September 7, 2017. However, if Defendants Yogorino and Kors fail to file their opposition by August 11, 2017, the September 20, 2016 Decision and Order will remain in effect as is and Plaintiff will have leave to renew its cross-motion at that time. As such, Plaintiffs cross-motion to enter judgments against Defendants is denied at this time, without · prejudice with leave to renew. Furthermore, this court will not disturb its previous ruling that Defendant Grinshtein was in default. As such, it is hereby 3 4 of 5 INDEX> NO. 161014/2015 [*FILED: NEW YORK COUNTY CLERK 07/14/2017 11:55 AM 4] NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 07/14/2017 ORDERED that Defendants Yogorino NY, LTD's and Yana Kors' motion to vacate and set aside their default in appearing and opposing Plaintiffs motion decided on September 20, 2016; to vacate and set aside the monetary judgment entered against them on September 20, 2016; or in the alternative, grant leave an,d/or additional time to submit opposing papers to Plaintiffs Motion dated May 23, 2016 is GRANTED in part to the extent that Defendants Yogorino NY, LTD and Yana Ko rs have leave to file opposition to Plaintiffs Motion for Summary Judgment and Default Judgment dated May 23, 2016 (motion sequence 001) by August 11, 2017. If Defendants file their opposition by August 11, 2017, Plaintiff has leave to file a reply by August 25, 2017; and it is further ORDERED that the Clerk shall restore the case to active status; and it is further ORDERED that all parties shall appear for oral arguments on Plaintiffs motion for summary judgment and default judgment on Thursday, September 7, 2017 at 9:30 a.m., in Part 47, located at Room #320, 80 Centre Street, New York, New York; and it is further ORDERED that any relief not expressly addressed in this order has nonetheless been C:u~·wt- considered and is hereby denied. Date: July 10, 2017 HON.. KA M. EDWARDS HON. ERIKA M. EDWARDS 4 5 of 5

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