Allcare Homecare Agency, Inc. v Lokshin

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Allcare Homecare Agency, Inc. v Lokshin 2019 NY Slip Op 33768(U) December 2, 2019 Supreme Court, Kings County Docket Number: 512939/2019 Judge: Richard Velasquez 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] KINGS COUNTY CLERK 12/24/2019] INDEX NO. 512939/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF, ' "'· . ,! 12/30/~ At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 2nd day of DECEMBER, 2019 . . '-<f: ' PRESENT: HON. RICHARD VELASQUEZ Justice. -----------------------------------------------------------------------)( ALLCARE HOMECARE AGENCY, INC., Index No.: 512939/2019 Plaintiff( s), ··- ( Decision and Ordek, · ·· · · :'-< -against- - c~..:.., ELENA LOKSHIN, {..m. C-J :-"'"-;:: +- ----------------------------------------------------------------------)( I •· ~'i:;j N Defendant(s). ...: CHI 0 ,...., I :, ;;;v ...;;:. h.. -- :'."' ... ni:~ --·~ )> ~ ::!': .. ,,,. ·f#tk -·-; '@ The following papers numbered 14 to 30 read on this motion: w &- Papers Numbered .c:.. /''. '\_. Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ __ 14-19 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ I, After oral argument and a review of the submissions herein, the Court finds as follows: Plaintiff ALLCARE HOMECARE AGENCY, INC., moves by Order to Show Cause for an order pursuant to CPLR 5015, 2221 (e) and 2005 restoring the plaintiffs prior motion seeking a preliminary injunction. Plaintiff opposes the same . .r . I ANALYSIS \ 1. . \ . -~-. Page 1of4 1 of 4 '. ·-·-----~-------·~~-~~-~ [*[FILED: 2] KINGS COUNTY CLERK 12/24/2019] NYSCEF DOC. NO. 40 INDEX NO. 512939/2019 RECEIVED NYSCEF: 12/30/2019 First, the court shall address plaintiffs request to vacate the order and restore the Ordter to show cause to the caledar. Pursuant to CPLR 5015 (a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newlydiscovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. "These categories, represent a codification of the principal grounds upon which courts have traditionally vacated default judgments as part of their "inherent discretionary power" (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:11, at 476 [1992]). "It thus follows that section 5015 (a) does not provide an· exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee" (see id.; 3d Preliminary Report of Advisory Comm on Practice and Procedure, 1959 NY Legis Doc No. 17, at 204), quoting Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68, 790 NE2d 1156 (2003). "In addition to the grounds set forth in section 5015 (a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (see Ladd v Stevenson, 112 NY 325, 332 [1889]; see generally 10 Weinstein-Korn-Miller, NY Civ Prac 5015.01, at 50-299; 5015.12, at 50-338 [2002]). As one commentator has noted, "It might have been more elegant to add an additional paragraph [to CPLR 5015 (a)] as a kind of catchall category, ... but the intent seems clear enough without it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:11, at 476-477), quoting Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 790 N.E.2d 1156 (Court of Appeals 2003). Page 2 of 4 2 of 4 ·\ [*[FILED: 3] KINGS COUNTY CLERK 12/24/2019] NYSCEF DOC. NO. 40 INDEX NO. 512939/2019 RECEIVED NYSCEF: 12/30/2019 Moreover, CPLR 2005 empowers the courts to exercise discretion in determining motions to vacate defaults emanating from law office failure. Among the factors to be considered are the meritorious nature of the defense, whether the neglect was excusable, lack of prejudice, brevity and non-deliberateness of the delay and a good faith intent to defend or prosecute the action (see Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917; Mineroff v. Macy's & Co., 97 A.D.2d 535, 467 N.Y.S.2d 895; Pettinato v. Sunscape At Bay Shore Home Owners Assn., 97 A.D.2d 434, 467 N.Y.S.2d 628) quoting Stolpiec v. Wiener, 100 A.D.2d 931, 932, 474 N.Y.S.2d 820, 821 (1984) .. "The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court" (see Morales v. Perfect Dental, P.C., 73 A.D.3d 877, 878, 899 N.Y.S.2d 883), and in exercising that discretion, the court may accept law office failure as an excuse (see CPLR 2005; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357). However, law office failure : should not be excused where " 'a default results not from an isolated, inadvertent mistake, but from repeated neglect'" (Gutman v. A to Z Holding Corp., 91 A.D.3d 718, 719, 936 N.Y.S.2d 316, quoting Chery v. Anthony, 156 A.D.2d 414, 417, 548 N.Y.S.2d 535), or where allegations of law office failure are vague, conclusory, and unsubstantiated (see Cantor v. Flores, 94 A.D.3d 936, 936-937, 943 N.Y.S.2d 138; see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 904, 866 N.Y.S.2d 357); quoting Glukhman v. Bay 49th St. Condo., LLC, 100 A.D.3d 594, 595, 953 N.Y.S.2d 304, 305 (2012). In the present case, the plaintiff has demonstrated a reasonable excuse of law office failure for the default as it was calendared incorrectly for the per diem that was to Page 3of4 3 of 4 . \ ' [*[FILED: 4] KINGS COUNTY CLERK 12/24/2019] INDEX NO. 512939/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/30/2019 ~. appear for the matter. Law office failure is widely accepted by this court a reasonable excuse, in the present case, it is clear that the "default results from an isolated, inadvertent mistake"' and such allegations of law office failure here are not vague, conclusory, and unsubstantiated. As such the plaintiff has demonstrated a reasonable excuse of law office ··,_; . failure. Therefore, this court finds that the prior order denying relief due to plaintiff's failure to appear pursuant to Uniform Rule 202.27 should be vacated based on the reasonable excuse of law office failure and "to promote the interests of substantial justice and ... 1. ·~~· fairness". Accordingly, plaintiff's Order to Show Cause for a preliminary injunction is hereby restored to the calendar with a return date of January 15, 2020. Opposition, if any, MUST be served and filed on or before January 1, 2020. Courtesy copies of all papers MUST be hand delivered to courtroom 469 on or before January 8, 2020. c This constitutes the Decision/Order of the Court. Date: December 2, 2019 ·,. DEC 0 2 2019 . r. '.' ) ' ~,- .. .·"' ,c. Page 4of 4 \ +.L' ., I,. 4 of 4 . ... :·\>· -~

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