Berman v Schwarz

Annotate this Case

Download PDF

Berman v Schwarz 2021 NY Slip Op 32497(U) November 23, 2021 Supreme Court, Kings County Docket Number: Index No. 512577/15 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 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 At an IAS Term, Part NJTRP of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 2Yd day of November, 2021. PRESENT: HON. LAWRENCE KNTPEL, Justice . .- ,.. - - - - - ., - - - .., - .., - - -. - - - .,. - - .,. ·,. - ., - ., - - -· - -. -X JAY BERMAN, Plaintiff, ,. against., Index No. 512577/15 SIMON SCHWARZ, SIMON SCHWARZ as Administrator of the estate of SAMUEL SCHWARZ and CONGREGATION NACHLAS JACOB ANSI-IE SFARD OFJACKSON HEIGHTS, Defendants. - .- - .- - - ·- - - - - - - - - - - - - .- ., -. ·.- - - - - - -· - - - ., -. -X The following e-filed papets read herein: NYSCEF Doc Nos. Notice ofMoticin/Orde1' to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed._ _ __ 122-137 139 OpposingAffidavits (Affirmations).· _ _ _ __ 142-147. 149-150 Reply Affidavits (Affirmations)_·_ _ _ __ 151-152 Upon the foregoing papers irt this trip and fall personal injury action, defendant Congregation Nachlas Jacob Anshe Sfard of Jackson Heights (the Congregation) moves {in 1notion s.equence [mot. seq.] eight); by order to show caus.e, for an order, pursuant to CPLR 2201; 3001, 3215 (f) and 50]5 and '"the Court's inherent discretion": (I) clarifying the court's earlier orders and directiyes 1 particulatly the May 17, 2019 otcler of the court 1 of 10 [*FILED: 2] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 (Maiiin, J.) (May 2019 Default Order) 1 to assure that the Congregation's cross claims asserted against defendant Simon Schwarz (Simon) shall be heard at trial; and/or (2) vacating that branch of the May 2019 Default Order which granted Simon a default judgment on his cross claims asserted against the Congregation and modifying the March 12, 2021 order of this court (March 2021 Order), which referred the case to a special referee for an inquest on damages againstthe Congregation in accordance with the May 2019 Default Order; and/or (3) vacating theMay2019Default0rd~r and the March 2021 Order. Background On October 15, 2015, plaintiff Jay Berman (Berman) commenced this action against Stnion and Samuel Schwarz (collectively, the Schwarz defendants) by filing a smnn1orts and a verified complaint alleging that Bennan, a pedestrian, was injured on February 8, 2014, when he tripped and fell On ice and snow on the sidewalk ih front of the Schwarz defendants' property at 1402 Avenue Nin Brooklyn (Property). The complaint asserted a.single cause ofactionagainst the Schwarz defendants for negligence. The 2014 Quiet Title Action Meanwhile, in 2014, prior to the commencement of this action, the Congregation commenced an action against the Schwarz defendants to quiet title to the Property and declaring the Schwarz defendants' deed to the Property ·is. void .(2014 Quiet Title 1 See NYSCEF Doc. No. 84. 2 2 of 10 [*FILED: 3] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 Action).2 By a February 23, 2015 decision and order, the court.granted the Congregation summary judgment and declared that the Schwarz defendants' deed to the Property was "invalid, void, cancelled and of no further force or effect'' and directed the City Register to expunge the deed from the record. The February 23, 2015 decision and order in the 2014 Quiet Title Action was subsequentlyaffirmed on appeal. The Amended Complaint Consequently, on August 5, 2016, Berman arrtended his complaint in this personal injury action to, among other things, name the Congregation as a party defendant. The amended complaint alleges- that all of the defendants, including the Congregation, owned, operated, managed, maintained, supervised, controlled and/or repaired the sidewalks in front of the Property and were negligent. On August 22, 2016, the Schwarz defendants answered the a1nended complaint denied the material allegations therein, including the allegations in paragraph 6 of the amended complaint that they ''jointly and/or severally owned" the Property at the time of Berman's accident The Schwarz defendants alleged in their answer that "an order dated February 23, 2015 from the Supreme Court, Kings County [in the 2014 Quiet Title Action] decided [that] the deed dated May 17, 2007 and recorded July 23, 2008 was determined to be invalid, void, cancelled and of no further force or effect'~ and ''[t]itle was . z· See Congregation Nachltts Jacob Anshe Sfard of Jackson He1ghts v Schwarz, et al.,_ Kings County index No. 500026/14. 3 3 of 10 [*FILED: 4] KINGS COUNTY CLERK 11/29/2021 04:53 PM INDEX NO. 512577/2015 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 11/29/2021 restored to the Co-defendant Congregation ... as title owner." The Schwarz defendants also asserted affirmative defenses and a cross claim against the Congregation for contribution and indemnification. On March l, 2017, the Congregation answered the amended complaint, denied several material allegations therein except admitted "fee ownership of the building and appurtenances pursuant to a metes and bounds description contained in a deed filed with the Kings County Register." The Congregation .-also asserted affirmative defenses and a cross claim against the Schwarz defendants for contribution and indemnification. On March 9, 2017, the Schwarz defendants replied to the Congregation's cross claim denying the allegations therein. The Second Amended C01nplaint On January 29, 2018, the Schwarz defendants moved for summary judgment . . dismissing the amended complaint on the ground that they were not the owners of the Property inFebruary2014, the time of Berman's accident, andthus, they owed no dutyto Berman. On June 5, 2018, Berman cross-'moved to amend the amended complaint to assert.claims for equitable estoppel, unjust enrichment and fraud, By an August 24, 2018 decision and order, the court (Maiiin, J.) denied the Schwarz detendants' summary judgment motion without prejudice and with leave to renew at the conch1sion ofdiscovery and held that 'Ta]t this juncture, there are issues of (act including, but not liinited to, whether said defendants were in control of the subject 4 4 of 10 [*FILED: 5] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 property during therelevanttime·period."' Importantly, the court granted Berman's cross motion for leave to amend the amended complaint, deemed the second amended complaint timely served and directed all defendants "to interpose an answer within 20 days of service of this order with notice ofentry.': The Congregation's Appearance Default On October 15, 2018, the Schwarz defendants answered the second amended complaint, asserted several c1ffirmafrve defenses and a cross claim against the Congregation for contribution and indemnification. However; the Congregation failed to answer or otherwise respond to the second amended complaint and failed to reply to the cross claim asserted against it by the Schwarz defendants. The May 2019 Default Order On November 28, 2018, Berman moved for a default judgment against the Congregation. On February 20, 2019, the Schwarz defendants cross-moved for a default judgment on their cross claims asserted against the Congregation. The Congregcltion failed to oppose the motion and cross motion. By the May 2019 Default Order, the court (Martin, J.) granted Berrnan;s motion and the Schwarz defendants' cross motion for a default judgment against the Congregation without opposition} The May 2019 Default Order was served by Berman i Notably, the Congregation's defense cc:itmsel was previously relieved of representing the Congregation in Mai·ch 2018, the Congregation failed to obtain new c'ounsel in time to answer the secon<i ame11ded complaint or the and 5 5 of 10 [*FILED: 6] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 upon the Congregation with notice of entty thereof on June 3, 2019. Subsequently, by the March 2021 Order, this court referred the case to a special referee for an inquest on damages against the Congregation. Berman and The Schwarz Defendants' Settlement Meanwhile, on or about March 28, 2019, Berman and the Schwarz defendants entered into a settlement agreement and Berman released the Schwarz defendants from liability regarding his trip and fall accident. Pursuant to the settlement, Berman and the Schwarz defendants entered into a March 29, 2019 stipulation discontinuing the action as against the Schwarz defendants. The Congregation's Instant Motion to Vacate its Default On June 15, 2021 - more than two years after the Congregation was served with notice of entry of the May 2019 Default Order - the Congregation moved, by order to show cause, for an order vacating the May 2019 Default Order and the March 202 l Order. The Congregation submits an affirmation from Joshµa Schwarz (Joshua), its "authorized representative," who affirms that "[t]he Congregation should not be held liable for Mr. Berman's accii:ient because at the time of the accident, Simon ... had Schwarz defendants' cross c.Iaims orto oppos~ Berman's November 2018 motion and the Schwarz defendarits 1 F¢bruary 2t:n 9 cross motion for a defm1ltjudgment. According to the Congregation, it was unable to obtain new co.unsel fotnearly three y1;:a1:s, until February 2021. 6 6 of 10 [*FILED: 7] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 improperly deeded the property to himself and was. operating it and making special use of it." Joshua thus argues that the Congregation has a meritorious defense to liability and has a: valid cross claim against Simon. Joshua: further affirtns that "the Congregation has a valid excuse for its defaultin the proceedings and the untimeliness of this application" because ''the Congregation was simply naive as to how to handle this situation and was overwhelmed by the infidelity of Simon." Joshua explains that his brother, Jacob, who was .handling the Congregation's defense, fell ill in 2017 and '[i]t was difficult for me to take up the mantle of the litigation after Jacob fell ill since I had not been handling this and it was all new and confusing to me.'; Joshua also affirms that it "took time'' to obtain new counsel for the Congregation after its defense counsel was relieved in March 2018 and the "effort was interrupted by Covid~19, which made it difficult to carry on with the task and find an attorney, and moreover, as I understand it, courts were closed &nd time limits and deadlines tolled." The Congregation also submits an affirmation from its defense counsel affirming that the Congregation was unable. to obtain new counsel until February 2021. Defense counsel argues that while "[t]he Congre:gation's counsel is well aware that a motion for relief under CPLR 5015 must be brought within a year ... this should not be an obstacle to the relief requested ... ;,, Defense counsel explains that: "the extenuatjng circumstances that· we are dealing with. a small religious cong1,:egation should be taken into· account. Religious organizations such as this one are essentially charitable in nature, and simply do not deal well in the secular 7 7 of 10 [*FILED: 8] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 world. The Congregation was caught like a doe in the headlights by this whole situation. Indeed~ it is for this very reason· that· it is given to the Courts to provide .special prote1:tion to religious corporations. {See Religious Corporations Law §12;) Like a nmnicipality, a religious corporation should be afforded 'sympathetic judicial recognition' of the problems confronting it when forced to leave the spiritual realm ihtothe ·secular." Essentially, defense counsel asserts thatittook more than two years for the Congregation to move to vacate its default because it was unable to function "in the secular world." T!te Schwarz Defendants' Opposition. The Schwarz defendants, in oppQsifron, submit an attorney affinnation asserting that ''the Congregation completely ignores the fact that the Plaintiff settled its claiins with the Schwarz Defendants and released them from liabili(y[,J" and therefore, ''any crossclaims for contribution made lJy the Congregation against the Schwarz Defendants are 110 longer viable, and the Congregation is unable to st.ate a claim for any indemnification against the Schwarz Defendants." Regarding the Congregations motion to vacate the May 2019 Default Order, defense counsel argues that "[t]he Congregation sought to vacate the default judgment otd er more than one year after s etvice of the order with notice of entry, did not show reasonable excuse for the delay, and failed to demonstrate that such a vacatur or clarification/ modification would be anything but prejudicial to the other parties in this case~ especially given·the s.ettlement and release ofthe Schwarz Defondantsi~' · Defense counsel-also asserts that if the May 2.019 Default Order is vacated.''[t]his six year 8 8 of 10 [*FILED: 9] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 old case will essentially have to start from the beginning, as much discovery, including depositions, h~ not taken place" and "[m]emories of any witnesses to the accident that allegedly occurred more than seven years ago will have faded." Bermai1 's Opposition Berman, in opposition, submits an attorney affinnation adopting the factual accounts, law and legal arguments asserted by the Schwarz defendants. Bennari's counsel further notes that the Congregation's curtent counsel filed its notice of appearance on February 5, 2021, yet inexplicably waited an additional five months before movingto vacate the May 2019 Default Order. Discussion CPLR 5015 (a) (1) provides that: ''(a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, uponthe ground of: "l. Excusable default. If such niotion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party . . ." (emphasis added). · ''A party se~l<.ing to vac&te a default in appearing pursu.ant to. CPLR 5015 (a). 0) must 4eri1onstrate a reasonable excuse for the default anq. a, pot~ntially meritorious defense to 9 9 of 10 [*FILED: 10] KINGS COUNTY CLERK 11/29/2021 04:53 PM NYSCEF DOC. NO. 153 INDEX NO. 512577/2015 RECEIVED NYSCEF: 11/29/2021 the action'' (92-18 149'11 Street Realty Corp. v Stolzberg, 152 AD3d 560, 562 [2017] [internal quotations omitted]). "Whether an excuse is reasonable is a determination withii1 the sound discretion of the Supreme Court" and, when making that discretionary determination, the court should consider relevant factors, such as the extent of the delay and prejudice to the opposing parties (Crevecoeur v Mattam, 172 AD3d 813, 814 [2019] [quoting Walker v Mohammed, 90 AD3d 1034, 1034 (2011)]). The Suprem~ Court has the inher,ent authority to vacate a judgment in the interest of justice even after the statutory one-year period has lapsed (see HSBC Bank USA, Nat. Ass 'n v Miller, 121 AD 3d 1044, 104 5-1046 [2014]). Here, the intervention of the Covid19 pandemic constitutes a force majeure which profoundly dismpted orderly operation of society in general and our courts in particular, sufficient to excuse the delay herein. Accordingly) the Congregations' motion to vacate its default is grantecl, The May 17, 2019 order granting a default judgment against the Congregation, and the March 12, 2021 order referring the case to a special referee for an inquest on damages against the Congregation are hereby vac~.ted. This constitutes the decision and order of the court. ENTER, 10 10 of 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.