Mohssen v Gonzalez

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Mohssen v Gonzalez 2020 NY Slip Op 34283(U) December 23, 2020 Supreme Court, Kings County Docket Number: 510925/15 Judge: Lawrence S. Knipel 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 12/23/2020 04:43 PM NYSCEF DOC. NO. 154 INDEX NO. 510925/2015 RECEIVED NYSCEF: 12/23/2020 At an IAS Ter1n, Part 57 of the Supreme Court of the State of New York, held in and for the County of l(ings, at the Courthouse, at Civic Center, Brooklyn, New York, on the z3rd day of December, 2020. PRESENT: HON. LA WREN CE S. KNIPEL, Justice. - -- - - --- -- - - - - - - - - - - - - - - - -- - - - - -- - -X F AHTI MOI-ISSEN, Plaintiff, - against - Index No. 510925/15 RUB-EN GONZALEZ, Defenda11t. - - -- - - -- -- -- -- - - - - - - - - - - -- - - - - - -- - -X The following e-filed papers read herein: NYSCEF Doc. Nos. Notice of Motion/Order to Sl1ow Cause/ Petition/Cross Motion and Atlidavits (Affirmations) A1mexed_ _ __ 141-148 Opposing Affidavits (Affirmations), _ _ __ 149-152 Reply Affidavits (Affinnations), _ _ _ __ 153 Upon the foregoing papers in this action regarding a property dispute, defendant Ruben Gonzalez (Gonzalez) moves (in motion sequence [mot. seq.] 11) for an order, pursuant lo CPLR 5015, vacating the November 14, 2019 order granted on default and restoring the action to the calendar. Plaintiff Fahti Mohssen (Mohssen) commenced this action against his neighbor, Gonzalez, on September 4, 2015, alleging that Gonzalez "has a fence encroaching on" Mohssen's property. On December 20, 2018, the court (Baynes, J.) granted Gonzalez's cross motion for su1n1nary judg1nent and denied Mohssen 1 s sum1nary judgment 1notion. 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/23/2020 04:43 PM NYSCEF DOC. NO. 154 INDEX NO. 510925/2015 RECEIVED NYSCEF: 12/23/2020 Mohssen tiled a tnotion to reargue. Gonzalez subsequently amended his answer to assert an ease1nent a11d adverse possession as affirmative defenses. Gonzalez's counsel, Jeanette Malaty, Esq., affir1ns that Mohssen's 1notion to reargue was adjourned several ti1nes because Justice Baynes, the judge who rendered the original decisio11 and order on the parties' su1n1uary judg1nent motion and cross 1notion, was unavailable. According to attorney Ma]aty, when she appeared in court on October 10, 2019, she was told that the motion to reargue was adjourned to December 4, 2019. Attorney Malaty affirms that she checked the court's electronic filing system (E-Courts) a few days later to confirm that the next appearance was scheduled for December 4, 2019, and she entered the appearance date on her calendar. However, attorney Malaty affirms that "ttnbCkno\\ nst to 1ne, the court later advanced the case to Nove1nber 14, 2019 and 1 rendered a judgment on default in favor of the plaintiff." Gonzalez now requests that the court vacate the November 14, 2019 order and restore the action to t11e calendar because he l1as both a reasonable excuse for the appear-dnce default and a 1neritorious defense to the action, si11ce he ""has already been granted summary judgment after oral argument based on the fact that [his] property contains and has always contained tl1e steps, stoop, and the chi1nney located on tl1e strip of land in dispute." Mol1ssen, in opposition, argues that Gonzalez's instant motion to vacate "should be denied in its entirety as it fails to address the primary issue why the Defendant's 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/23/2020 04:43 PM NYSCEF DOC. NO. 154 INDEX NO. 510925/2015 RECEIVED NYSCEF: 12/23/2020 counsel failed to appear in court on the return date and a ineritorious defense." Mohssen's counsel clai1ns that the notice of the new court date was on E-Courts, which is ho'v his office was aware of the court date. Mohssen also disputes that Gonzalez has a nleritorious adverse possession defense because a "major" issue raised was that the parties' properties were jointly owned until 2012. Mohssen claims that "[t]he parties, neighbors, had separate properties for only three years prior to tl1e co1n1nencement of the Ii Ligation at 1nost and therefore adverse possession ca1U1ot be justified ... " Gonzalez's counsel, in reply, reiterates that she had a reasonable excuse for the appearance default because "the proceeding was advanced to a date nineteen days earlier" than the December 4, 2019 return date, and "[i]n the fifteen years that I have been practicing, I 11ave had cases ad1ninistratively adjourned to later dates, but never to an earlier date." Gonzalez's counsel notes that she was "very surprised" when her office received a copy of the default judg1nent in the 1nail, which was when she first became aware that the return date had been advanced to November 14, 2019. Gonzalez argues that "plaintiff is attcinpting to tal(e unfair advantage of an administrative glitch wl1ich advanced this case from December 4, 2019 to November 14, 2019, in order to prevail in an action that had already been decided on December 20, 2018 when this court granted su1nn1ary judgrnent to the defendant." "In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1), the 1noving party is required to de1nonstrate a reasonable excuse for his or her default and 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/23/2020 04:43 PM NYSCEF DOC. NO. 154 INDEX NO. 510925/2015 RECEIVED NYSCEF: 12/23/2020 a potentially meritorious opposition to the motion" (Rocco v Family Ctr., 94 AD3d 1077, I 079-1080 (2012]). Here, Gonzalez has established a reasonable excuse for his default in appearing at the Nove1nber 14, 2019 oral argument on Mohssen's motion to reargue. Gonzalez's failure to appear at oral argument was neither willful not deliberate. Furtl1ern1ore, a cttrsory review of the parties' 111oving and opposing papers sub1nitted on Mohssen's 1notion to reargue reflect that Gonzalez has a potentially 1neritori'ous opposition to the tnotion. According!)', in the interest of justice and absent any prejudice to Mohssen, Gonzalez's instant tnotion is granted in its entirety, the case is restored and the order dated November 14, 2019 is vacated. This constitutes the decision and order of the court. ENTER, Justice Lawrence Knipel 4 4 of 4

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