Mollica v Ruzza

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Mollica v Ruzza 2017 NY Slip Op 31652(U) June 6, 2017 Supreme Court, Dutchess County Docket Number: 50759/2014 Judge: James D. Pagones 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: DUTCHESS COUNTY CLERK 06/07/2016 02:44 PM 1] NYSCEF DOC. NO. 186 INDEX NO. 2014-50759 RECEIVED NYSCEF: 06/06/2016 To commence the statutory time period for appeals as of right [CPLR 5513(a)), you are advised to serve a copy of this order, with notice of entry upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ----------------------------------------X CHERYL M. MOLLICA, Plaintiff, DECISION AND ORDER -againstWILLIAM A. RUZZA, JR., CHRISTOPHER C. MOLLICA, SYNERGIX FUNDING GROUP, LLC, RAYMOND STURINO, IVY HILL COMMODITIES CORP., CAPITAL ONE BANK (USA), N.A., OLD DOCK ROAD PROPERTIES LLC, and "JOHN DOE NO. 1 THROUGH JOHN DOE NO. 99," said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, Index No. 50759/2014 Defendants. ----------------------------------------x PAGONES, JD., A.J.S.C. Plaintiff moves for an order: (1) pursuant to CPLR 2221(d), granting leave to reargue the Court's April 15, 2016, which struck her pleadings; or (2) vacating her default in opposing the defendant's application to strike, pursuant to CPLR §2005 and CPLR 5015. The following papers were considered: Order to Show Cause-Affirmation-AffirmationAffidavi t-Exhibits A-R-Affirmation of Service Affirmation in Opposition-Exhibits A-CAffidavit of Service Affirmation in Opposition-Exhibits A-M -1- 1 of 5 1-23 24-28 29-44 [* 2] Memorandum of Law-Affidavit of Service Affirmation in Reply-Exhibits A-C 45-48 upon the foregoing papers it is hereby ordered that the order to show cause is decided as follows: By way of background, defendant Synergix Funding Group, LLC, ("Synergix") moved to strike plaintiff's pleadings and defendant Christopher Mollica's cross-claim by Notice of Motion dated ~arch 15, 2016. The motion was made returnable on April 14, 2016 at 9:30 a.m. Contained within the motion papers was a proposed order, granting said motion without opposition. On April 15, 2016, the Court after reviewing the submission signed the proposed order. Unbeknownst to the Court, plaintiff e-filed p.~. opposition papers to the motion on April 14, 2016 at 5:51 Addressing the merits of the plaintiff's motion, Co~rc the would initially note that a motion to reargue is not the proper vessel in which to move to vacate a default in opposing a motion, rather the motion will be considered pursuant to CPLR 5015(a) (1) (see Dobbyn-Blackmore v. City of New York, 123 AD3d 1083 [2nd Dept 2014]). In order to vacate a default in opposing a motion pursuant to CPLR 5015(a) (1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (id.). A motion to vacace a default is addressed to the sound discretion of the Supreme Court (see Dimitriadis v. Visiting Nurse Service of New York, -2- 2 of 5 84 AL3d [* 3] 1150 [2nd Dept 2011)) . In support of her motion to vacate, plaintiff's counsel alleges law office failure as a "reasonable excuse". Counsel states that "Believing that the motion return date was April 15, 2016, my office interposed opposition papers on April 14, 2016, at 5:51 PM ... Unfortunately, the motion return date was April 14, 2016, one day earlier, and, as such, and upon information and belief, the Court either overlooked or did not consider Plaintiff's opposition papers." Pursuant to CPLR 2214(b): " ... Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands ... " Accordingly, it would appear to this Court that counsel's "reasonable excuse" is completely unreasonable. In the event that motion return date was, as counsel thought, April 15, 2016, her opposition papers would still have been late. However, in the interests of justice and given the strong public policy in favor of resolution of matters on their merits, the Court will excuse the default in opposing the motion based upon law office failure (see CPLR §2005). Here, counsel's isolated incident of neglect in filing timely opposition to the motion should not deprive her client of her day in Court in the absence of prejudice to the opponent (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2005) -3- 3 of 5 [* 4] Moreover, the moving plaintiff has demonstrated the existence of a potentially meritorious opposition to defendant Synergix's motion (see generally 1158 Properties, LLC v. 1158 McDonald, LLC, 104 AD3d 658 [2nd Dept 2013]) . Based upon the foregoing, the Court's order of April 15, 2016 is vacated to the extent that it struck plaintiff's pleadings. The balance of the order shall remain in full force and effect. The Court declines to sign the proposed judgment submitted by defendant Synergix on April 21, 2016. Counsel are directed to appear for a further compliance conference on June 22, 2016 at 10:00 a.m. Adjournments are only granted with leave of the Court. The foregoing constitutes the decision and order of the Court. Dated: This decision and order has been filed electronically. June 6, 2016 Poughkeepsie, New York ENTER TO: ALISA LEONA SONDAK, ESQ. SONDAK LAW GROUP, P.C. Attorneys for Plaintiff 110 East 59th Street, 23rd Floor New York, New York 10023 alisa@sondaklaw.com -4- 4 of 5 [* 5] DANIEL H. RICHLAND, ESQ. Attorney for Plaintiff 152 West Hoffman Avenue, Suite 11 Lindenhurst, New York 11730 CHRISTOPHER MOLLICA Defendant, Pro Se 5 Raphael Street Huntington Station, New York 11746 via U.S.P.S. regular mail JONATHAN BRETT NELSON, ESQ. DORF & NELSON, LLP Attorneys for Defendant SYNERGIX FUNDING GROUP, LLC 555 Theodore Fremd Avenue, Suite A300 Rye, New York 10580 ANTHONY M. PROVENZANO, ESQ. Attorneys for Defendant RAYMOND STURINO 320 Westchester Avenue Port Chester, New York 10573 apro·v·enz c,~10 6 3 G~yrna i ~. ,_om MICHAEL L. SHANKER, ESQ. SHANKER LAW GROUP Attorneys for Defendant IVY HILL COMMODITIES CORP. 101 Front Street Mineola, New York 11501 mshanker(iJshanklerL:n·i. corn 060616 decision&order -5- 5 of 5

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