Jacob Cram Coop., Inc. v Ziolkowski

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Jacob Cram Coop., Inc. v Ziolkowski 2018 NY Slip Op 32829(U) November 7, 2018 Supreme Court, New York County Docket Number: 156980/2017 Judge: Debra A. James 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. [*FILED: 1] NEW YORK COUNTY CLERK 11/08/2018 09:29 AM INDEX NO. 156980/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 11/08/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART HON. DEBRA A. JAMES PRESENT: IAS MOTION 59EFM Justice --------------------------------------------------------------------------------X JACOB CRAM COOPERATIVE, INC. INDEX NO. MOTION DATE 156980/2017 10/30/2018 Plaintiff, MOTION SEQ. NO. 006 007 -vTHOMAS ZIOLKOWSKI, DECISION AND ORDER Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 129 JUDGMENT - DEFAULT were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 007) 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157 158, 159 160 161 162 16 3 164 165 I 1 I I I I I were read on th is motion to/for VACATEDECISION/ORDER/JUDGMENT/AWARD DECISION Plaintiff moves for a default judgment based upon the defendant's failure to file and serve an answer, which answer was due on August 15, 2018. Such motion was brought on September 17, 2018. By Show Cause Order dated October 12, 2018, defendant moves to vacate his default in serving and filing an answer. While it is true that plaintiff's statement about his mental disability is unsubstantiated, self-serving, and contradictory, his difficulty retaining a new attorney states a reasonable excuse, particularly consid·ering his only two-month 156980/2017 JACOB CRAM COOPERATIVE, INC. vs. ZIOLKOWSKI, THOMAS JOHN Motion No. 006 007 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 11/08/2018 09:29 AM INDEX NO. 156980/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 11/08/2018 delay in retaining an attorney. Hosp., 266 AD2d 665 In Busone v Bellevue Maternity (4th Dept. 1999), the Fourth Department, Appellate Division, affirmed the trial court's vacatur of the plaintiff's finding that plaintiff's one-year delay in retaining a new attorney constituted a reasonable excuse. With respect to whether defendant states a meritorious defense, Busone, is likewise instructive: "'the quantum of proof needed to prevail on a CPLR 5015(a) (1) motion is not as great as that required to successfully oppose a motion for summary judgment' (Winney v. County of Saratoga, 252 A.D.2d 882, 884". 266 AD2d at 667. However, though on a motion to vacate a default, defendant ''is not required to establish a defense as matter of law", he "is required . • (David Saunders, .to make a prima facie showing of legal merit" P.C. v Harris a. Sanders, Architects, P.C., 140 AD2d 787, 789 [4th Dept. 1988]). While some of the defenses of defendant's unverified proposed answer, and/or suggested in his affidavit of merits, have merit, defendant has not prima facie established the merits of all such defenses. Lacking in merit are any references to ''burden of proof" and such allegations are stricken. Likewise, the defenses of the' proposed answer enumerated first, second, third (except for the first sentence), sixth, seventh, eighth, and ninth are utterly lacking in merit . . See 40 West 67th Street Corp. v Pullman, 100 NY2d 147 156~80/2017 JACOB CRAM COOPERATIVE, INC. vs. ZIOLKOWSKI, THOMAS JOHN Motion No. 006 007 2 of 4 (2003). Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/08/2018 09:29 AM INDEX NO. 156980/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 11/08/2018 In addition, the first counterclaim for attorney's fees constitutes a remedy, perhaps for the second counterclaim, but in and of itself does not state a viable cause of action and is therefore stricken. Finally, plaintiff is entitled to the payment of past and prospective use and occupancy by defendant, without prejudice to either party's position. See Levinson v 390 West End Associates, LLC, 22 AD3d 397, 402-403 (1st Dept. 2008). ORDER Upon the foregoing documents, it is ORDERED that defendant's motion to vacate his default (motion sequence number 007) is granted on condition that defendant remit to plaintiff payment of past use and occupancy to date, within ten (10) days of entry of this order, and thereafter use and occupancy, on the first day of each month at the monthly maintenance rate set forth in defendant's proprietary lease, pendente lite, and without prejudice, and upon the further condition that defendant serve and file a verified answer to the complaint, in accordance with the foregoing decision, within 10 days from service of a copy of this order with notice of entry; and it is further ORDERED that the plaintiff's motion for a default judgment (motion sequence number 006) is denied; and it is further 156980/2017 JACOB CRAM COOPERATIVE, INC. vs. ZIOLKOWSKI, THOMAS JOHN Motion No. 006 007 3 of 4 Page 3of4 [*FILED: 4] NEW YORK COUNTY CLERK 11/08/2018 09:29 AM INDEX NO. 156980/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 11/08/2018 ORDERED that plaintiff shall serve a reply to or otherwise move with respect to the counterclaim, within ten (10) days from service of such verified complaint; and it is further ORDERED that defendant shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Off ice ( 60 Centre Street, Room 119); and it is further ORDERED that such I service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that counsel are directed to appear for a status conference in Room 331, 60 Centre Street, on November 27, 2018, at 11:00 AM. 11/7/2018 DATE CHECK ONE: DA"'K. J CASE DISPOSED GRANTED D DENIED x x NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 156~80/2017 JACOB CRAM COOPERATIVE, INC. vs. ZIOLKOWSKI, THOMAS JOHN Motion No. 006 007 4 of 4 ES, J.S.C. ~ D D OTHER REFERENCE Page 4of4

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