Khoury v JLA Home Improvements, Inc.

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Khoury v JLA Home Improvements, Inc. 2018 NY Slip Op 34475(U) December 7, 2018 Supreme Court, Westchester County Docket Number: Index No. 65635/2016 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 12/10/2018 11:00 AM NYSCEF DOC. NO. 32 INDEX NO. 65635/2016 RECEIVED NYSCEF: 12/07/2018 To comme commence the statuto statutory nce the ry time time for for appeal appealss as of right right (CPLR 5513(a] 5513[a]), you are ), you advised advised to serve selVe a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties parties.. SUPR EME COUR SUPREME COURTT OF THE THE STAT STATEE OF NEW NEW YORK YORK COUN TY OF WEST COUNTY WESTCHESTER CHES TER PRES ENT: HON. SAM PRESENT: SAM D. WALK WALKER, J.S.C.. ER, J.S.C -------------------------------------------------------------------------X --------------------------------------------------------------------------x KAMI L KHOU KAMIL KHOURY, RY, Plaint Plaintiff, iff, DECI SION AND DECISION ORDERR AND ORDE INDE X NO: INDEX NO: 65635 65635/2016 /2016 Seq# 2 Seq# -again -againstst- JLA HOME IMPR OVEM ENTS , INC. IMPROVEMENTS, INC. LUIS MONG MONGE, E, Defen Defendant. dant. --------------- -------- -------- -------- -------- -------- -------- -------- X -----------------"---------------------------------------------------X The ing paper s were receiv ed and consid The follow following papers received considered in conne connection the ered in ction with with the above -captioned matte above-captioned matter: r: Order /Affidavit of Facts /Affirmation/Proposed Answ Order to to Show Show Cause Cause/Affidavit Facts/Affirmation/Proposed AnswerllExhibits 1-5 er//Exhibits1-5 Affirm ation in Oppo Affirmation Opposition/Exhibits sition/Exhibits A 1-9 1-9 10 10 The ff, Kamil Khour y, comm The plainti plaintiff, Khoury, commenced filing of of a a summ summons enced this action by the filing ons and laint on er 15, and comp complaint on Octob October 15, 2016, allegin alleging July 15, 15, 2016, the g that in or about July 2016, the defen dant entere d into ment with the plainti defendant entered into an agree agreement plaintiff, whereby the defen defendant was to to ff, where by the dant was perfor m home vement work in perform home impro improvement in the plaint plaintiff's payment of $22,0 $22,000.00. The iffs home for paym ent of 00.00. The plaint iff allege d that y throug h the constr plaintiff alleged that midwa midway through construction project, the defen defendant refused to uction projec t, the dant refuse d to honor ct by failing to install insula honor the the terms terms of of the the contra contract insulation in the the walls and ceiling ceiling;; tion in walls and failing m in comp liance with the buildin failing to to perfor perform compliance building off the the job and g code; and walking walking off job and refusi ng to comp lete the const refusing complete construction project. ruction projec t. The iff filed vit of servic The plaint plaintiff filed an affida affidavit service showing service upon the the corpo corporate e showi ng servic e upon rate [* 1] 1 of 5 Paa FILED: WESTCHESTER COUNTY CLERK 12/10/2018 11:00 AM NYSCEF DOC. NO. 32 INDEX NO. 65635/2016 RECEIVED NYSCEF: 12/07/2018 defendant, JLA Home Improvements, Improvements, Inc. ("JLA"), but failed to serve the defendant, defendant, answer to the complaint complaint and the plaintiff plaintiff Luis Monge ("Monge"). JLA failed to file an answer default judgment. plaintiff's motion and a judgment moved for a default judgment. This Court granted the plaintiff's judgment September 8, 8,2017 $26,847.28, in in favor favor of the plaintiff was entered on September 2017 in the amount of $26,847.28, against JLA. Monge, the president president of JLA, now moves by order order to show cause to and against default judgment vacate the default judgment entered. intentionally default default but retained a lawyer when he Monge avers that he did not intentionally complaint in the mail from the Department Department of State and paid received the summon and complaint him $500 to interpose an answer. He also states that he did not receive the photograph photograph purportedly attached to the complaint. Monge states that when he did exhibits that were purportedly matter was closed until he was served with not hear from the lawyer, he assumed the matter judgment from the sheriff. He states that he received no notice of the execution execution of the judgment inquest or notice of intent to enter judgment. judgment. further states that he has a meritorious meritorious defense, in that, he denies each Monge further allegation in the complaint. Monge states that the replacement replacement contract and every allegation electrical work that was not specified specified in his contract. He states requires plumbing and electrical contract did not call for a new marble countertop, claimed by the plaintiff plaintiff and that the contract photograph(s), was performed performed by him and his four workers. that most of the work in the photograph(s), Monge contends that he did not abandon the job but was discharged discharged at a time when there was a balance due of $8,000, because the bulk of the work had been completed. counterclaims for amounts amounts allegedly allegedly owed to him. Monge asserts counterclaims plaintiff opposes opposes the motion arguing that the plaintiff plaintiff clearly met the burden The plaintiff Page 2 of 5 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 12/10/2018 11:00 AM NYSCEF DOC. NO. 32 INDEX NO. 65635/2016 RECEIVED NYSCEF: 12/07/2018 of establishing, ce of the evidence, that JLA was properly establishing, by a preponderan preponderance properly served, thereby thereby conferring the Court with jurisdiction jurisdiction over it. Discussion Discussion 'CPLR 5015(a) provides provides that a party may be relieved from a judgment judgment on the ground of, among others, "excusable "excusable default"' default''' (Eugene (Eugene Di Di Lorenzo, Lorenzo, Inc v A.C. Dutton A. C. Dutton Lumber Lumber Co., Co., Inc., 67 NY2d 138, 141 141 [1986]). Specifically, Specifically, CPLR 5015(a){1) 5015(a)(1) entitles a defendant judgment on the ground of excusable defendant to relief from a default default judgment excusable neglect if the motion is made within one year from the date that defendant defendant is served with a copy of the judgment. Relief upon this ground requires a showing of "both a reasonable judgment. reasonable excuse excuse for [the defendant's] defendant's] default default and a meritorious meritorious defense" defense" (Hageman (Hageman v Home Home Depot Depot U.S.A., Inc., 25 AD3d 760, 761 761 [2d Dept 2006]). "The determinatio determinationn of what what constitutes constitutes a reasonable default lies within the sound discretion reasonable excuse for a default discretion of the Supreme Supreme Court", (Star (Star Indus., Indus., Inc. v Innovative Innovative Beverages, Beverages, Inc., 55 AD3d 903, 904). "A second provision for obtaining relief from a default default judgment judgment is found in CPLR 317" (Eugene A.G. Dutton (Eugene Di Di Lorenzo, Lorenzo, Inc v A.C. Dutton Lumber Lumber Co., Co., Inc., 67 NY2d @ 141). That section states that a defendant defendant served other than by personal delivery delivery may be allowed to defend the action within one year after knowledge of entry of the judgment, judgment, upon a finding of the court that the defendant defendant did not personally personally receive notice of the summons summons in time to defend and has a meritorious meritorious defense defense (Id.). (ld.). '[T]here '[T]here is no necessity necessity for a defendant moving pursuant defendant pursuant to CPLR 317 to show a "reasonable "reasonable excuse" excuse" for its delay' (Id.). 'service on a corporation corporation through delivery (ld.). Further, 'service delivery of process to the Secretary Secretary of of State is not "personal "personal delivery" to the corporation or to an agent designated designated under CPLR Page 3 of 5 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 12/10/2018 11:00 AM NYSCEF DOC. NO. 32 INDEX NO. 65635/2016 RECEIVED NYSCEF: 12/07/2018 (ld.). "Thus, corporate defendants defendants served under Business Corporation Corporation Law§ Law S 306 318 (Id.). frequently obtained relief from default judgments have frequently judgments where they had a wrong address on file with the Secretary of State, and consequently, did not receive actual notice of the action in time to defend" (Id.) (ld.) While Monge admits to receiving the summons and complaint, he avers that he hired an attorney and thought that the attorney was taking care of the matter. As determination of what constitutes a reasonable excuse for a previously stated, the determination default lies within the sound discretion of this Court and this Court finds that the defendant defendant has provided a reasonable excuse. Additionally, the defendant defendant made the motion to vacate within one year of notice of entry of the default default and the defendant defendant has potentially meritorious meritorious defense. a potentially "[a) strong public policy exists which favors the disposition disposition of Furthermore, "[a] matters on their merits (Ahmad (Ahmad v An/olow/sk/, AD 3d 692 [2d Dept 2006]) 2006)) and the Aniolowiski, 28 AD3d Court has considered the absence of evidence that the default was intentional, in bad plaintiff has not alleged nor faith of with an intent to abandon the action and the plaintiff in vacating the default (Id.). (ld.). established prejudice in Therefore, the defendant's judgment is granted; and it is defendant's motion to vacate the judgment ORDERED that the judgment September 8, 2017 in the amount of ORDERED judgment entered on September $26,847.28 against JLA Home Improvements, Inc. in favor of Kamil Khoury, is vacated; further and it is further defendant(s) shall serve and file an answer answer in NYSCEF ORDERED that the defendant(s) twenty days of the filing of this Decision and Order. within twenty Page 4 of 5 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 12/10/2018 11:00 AM NYSCEF DOC. NO. 32 INDEX NO. 65635/2016 RECEIVED NYSCEF: 12/07/2018 Preliminary Conference in The parties are directed to appear before the Preliminary Conference Part in 811 on January January 14, 2019 at 9:30 a.m. courtroom 811 The foregoing shall constitute the decision decision and order of the Court. Dated: White Plains, NY 'j:::>~~U~ -i '1,,,2018 201 s "j:>~~u~ - I J___ ~ SAM D. WALKER, HON. SAM WALKER, JSC Page 5 of 5 [* 5] 5 of 5

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