Mercury Pub. Affairs, LLC v Gramercy Park Servs., LLC
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Mercury Pub. Affairs, LLC v Gramercy Park Servs., LLC 2017 NY Slip Op 32094(U) June 28, 2017 Supreme Court, New York County Docket Number: 104570/11 Judge: Doris Ling-Cohan 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. [* 1] f~AJ b '[) r- J1.S:uPREME COURT OF THE STATE OF NEW P.RESENT: Hon. Doris Ling-Cohan, Justice YO~ - NEW YORK COUNTY Part 36 ·-·~~~~~~~~~~~~~~-- · MERCURY PUBLIC AFFAIRS, LLC, D/B/A IGR GROUP and FHGR, Plaintiff, INDEX NO. 104570/11 -againstMOTION SEQ. NO. 006 .;GRAM&RCY PARKSERVICES, LLC; ~RAM~RCY PARK MEDICAL GROUP P.C., ·· ~md RA'Y;MOND SANCHEZ, ·:~. Deftndants. I• , • ""• The following papers, numbered 1..3 were considered ~n the motion to vacate a default judgment: NUMBERED PAPERS 1,2 Notice of Motion/Order to Show Cause, -Affidavits - Exhibits & Memo_ 3 Answering Affidavits -Exhibits ( & memo) _-+-h~!erff-...iy..(::al.fH~-r-:-::==-r Cross-Motion: [ ) Yes JUN 3 0 2017 [ X] No Upon the foregoing papers, it is ORDERED that defendant Raymond Sanchez's ("Sanchez'') second motion pursuant, to CPLR § 5015 to vacate the October 30, 2013 default judgment entered against hi~ denied, as · detailed below. . : . r , : co ILE D JUN 30 2017 UNry CLERK'S OFi Defendant Sanchez's first motion to vacate the October 3,), 2013 default judgment (rft'&l~Ii'-en~CE" number 005) was denied by this court in a decision/order dated July 8, 2014, (over two (2) years ago), for failure to establish a sufficient excuse for his numerous defaults, which included his nonappearance at numerous court dates, as well as his failure to comply with court orders relating to ·the timely completion of discovery. Rather than appealing the July 8, 2014 order or moving to renew and/or r~argue this court's denial of his prior motion to vacate the default judgment, defendant ~;anchez filed a second motion to vacate the October 30,-2013 default judgment (within motion, [* 2] sequence number 006), over two (2) years after his first motion was denied. ~tis noted that, despite defendant Sanchez's default in timely filing an answer in this case, this court, . . nevertheless, previously granted defendant Sanchez's motion to vacate his initial default, and gave defendant Sanchez an opportunity to submit a late answer (see decision/order dated January 4, 2012, . ' Motion Sequence No. 001). ~s specifically indicated in this court's order.dated July 8, 2014, which denied defendant Sanchez's ., . . . first motion to vacate the October 30, 2013 default judgment: "this is not defendant Sanchez's first default. As reflected in the history of the case ... there were a series of default~- by defendant, _during the course of the within litigation... Defendant Sanchez failed to timely file an answer, which resulted in the filing by plaintiff of a motion for a defaultjudgment. By order dated January 4, 2012, this court denied plaintiffs motion for a default judgment against defendant Sanchez and granted defendant Sanchez's cross-motion for leave to file a late answer ... A preliminary discovery conference order was issued by this court dated January 4, 2012, and pursuant to such order, this case was scheduled for a discovery compliance conference on March 16, 2012. At the March 16, 2012 conference, defendant Sanchez appeared pro se and by "so ordered" stipulation dated March 16, 2012, deposition dates were rescheduled as they had not been completed as provided in the preliminary conference order, with a further discovery conference scheduled for May 4, 2012. After conference on May 4, 2012, at which defendant Sanchez also appeared pro 'se~ this court issued an order again rescheduling the parties' depositions, which had yet to be completed, and scheduling a further conference for June 15, 2012. :· Defendant Sanchez failed to appear at the June 15, 2012 discovezy conference, as: well as the discovery conferenc~ scheduled for July 20. 2012. By order dated June 15. 20~2. defendant Sanchez was specifically warned that his failure to appear at the July 20. 2012 conference would result in the granting of a default against him. in accordance with 22 NYCRR §202.27. Thus, by order dated July 20. 2012. this court entered a default against defendant Sanchez. based upon his non-appearance at the two (2) previously scheduled discovexy conferences, and referred the matter te a Special Referee, for an inquest on the issue of damages. Additionally, by order dated July 20, 2012, defendant 2 [* 3] Sanchez's motion for summacy judgment was denied. also based upon his failure to aiwear on the return date. By order dated March 7, 2013, a second order was issued granting default against defendant Sanchez. for his failure to appear on his motion for reargument scheduled for November 21. 2012 and January 23. 2013. with an inquest to be held as to damages before a Special.Referee. On or about, May 21, 2013, an inquest was held before Special R~feree Lan.~elot ~· Hewitt, at which defendant again failed to appear. By order dated August 8, 2013, it was determined that judgment be entered against defeQ.dants Gramercy Park Services, LLC and Raymond Sanchez, in the amount of $96,400. On October 30, 2013, a judgment was entered in the amoWlt of $96,400, plus interest, costs and disbursements, totaling $100,785.72" (emphasis supplied). iri the within motion, defendant Sanchez again argues that he has a reasonable excuse and a meritorious defense to warrant vacatur of the October 30, 2013 default judgment. Defendant Sanchez.also argues that the default judgment should be vacated on the grounds of"fraud, .misrepresentation, or other misconduct of [sic] the part of the plaintiff' and "newly-discovered evidence which if introduced at trial, would probably have produced a different result and which could not have been discovered in time to. move for a new, trial" (Notice of Motion, at 1-2). CPLR §5015 (a)(l) permits a court to vacate a default judgment where there has been an "excusable default" by defendant, upon a showing of .both a justifiable excuse for the default and a meritorious defense. Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 (1st Dept 2001). Vacatur may also be sought upon, inter alia, a sufficient showing of "newly-discovered evidence which, if introduced at the trial, would probably have produced a-different result and which could not have been discovered in time to move for a nevv- trial" and/or,·based upon "fraud, misrepresentation, or other misconduct of an adverse party" (Cf>LR § 5015 [l] and [3][emphasis supplied]) . ... . In the within motion, defendant Sanchez, again fails to supply a sufficient excuse for his many defaults in this case, both in appearing ai~et court conferences and in complying with prior court 3 [* 4] orders, to ~arrant vacatur of the October 30, 2013 default judgment. While defendant Sanchez conclusively and broadly states as his alleged "excuse" for his "default" that he was "not well" and under the .care of Dr. Felicita, similar to what he asserted .in his prior motion to vacate the default judgment, defendant Sanchez again fails to provide an explanation as to each of his numerous defaults in appearing before this court and.in failing to comply with court orders with respect to the . . completion of discovery. Moreover, while defendant Sanchez also mentions an affidavit by Dr. Felicitas, no affidavit has been supplied in the papers sub1i1itted on the within motion. Defendant also, again fails to provide a sufficient exc~se for his failllre to appear at the numerous previously scheduled court ordered depositions in this case. Thus, as defendant Sanchez has failed to supply a sufficient excuse for his pattern of defaults in this case (consisting of at least six (6) non-appearances on scheduled court dates), the motion to vacate the default judgment is denied. See Saunders v. City ofNew York, 283 AD2d 213 (Pt Dept 200l)(defendant's failure to appear at four scheduled court dates evinces a complete lack of regard for the court and the legal process, and not excusable); Utica Mutual Insurance Company v. McCorvey, Jr., 116 AD3d 560 (1st Dept 2014)(pattem of defaults warranted denial of motion to vacate default judgment). Additionally, while defendant Sanchez claims that he has a "valid claim and defense" against plaintiff in this breach of contract action, he fails to provide the court with any factual support for his ~onclusory assertion and, again, as in his -prior motion, the within motion is only supported by his self-serving conclusory affidavit. With respect to defendant Sanchez's claim bf alleged fraud, misrepresentation or misconduct, he merely conclusively states that he has "a· valid claim against plaintiffs partner in that they defrauded [him] for [his] share of the ownership ofthe corporation" '(~3 5, Affidavit in Support [emphasis 4 [* 5] supplied]), without any details or particulats as to any fraud, misrepresentation or misconduct, on the part of plaintiff. Additionally, it is noted that defendant Sanchez has also commenced what appears to be a related lawsuit in this court against Larry Kroll, Gramercy Park Services, LLC and Comprehensive Consulting, Inc., which remains pending, in which he asserts claims of, inter alia, fraud. (Raymond Sanchez, Guillermo Seco and Gramercy Park Medical Group, P. C. v. Larry Kroll, Gramercy Park Services, LLC and Comprehensive Consulting, Inc., Index No.: 651458/2012) With respect to defendant Sanchez's claim of "newly-discovered evidence which if introduced at trial, would probably have produced a different result which could not have been discovered in time to movefor a new trial", notably, there was no trial in this~case, but, rather, only an inquest on the issue of damages, which resulted from defendant Sanchez's numerous defaults. Moreover, defendant Sanchez failed to establish that any newly discovered evidence existed which would have produced a different result and provided a basis for vacatur. Accordingly, it is ORDERED that defendant Raymond Sanchez's second motion to vacate the default judgment dated October 30, 2013, is denied; and it is fw1her ORDERED that within 30 days of~ntry, plaintiff shall serve a copy of this decision/order, \\~th notice of entry, upon all parties. " ) . Dated: ILE D ~~__;:~~~~~~~~- DORIS LING-COHAN, J.S.fuN l O2017 .] NON-FINAL DISPg~g.1~~Ey~~~OFFICE Check one: [ X] FINAL DISPOSITION Check if Appropriate: [ ] DO NOT POST J:\Judge_Ling-:Cohan\Default Judgments\V ACATE DEFAULT JUDGMENTunercl!r public affairs. gramercy park services.006.wpd 5
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