Whang v Bailey

[*1] Whang v Bailey 2021 NY Slip Op 50051(U) Decided on January 27, 2021 City Court Of Mount Vernon Williams, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 27, 2021
City Court of Mount Vernon

Michael Whang, M.D., Plaintiff,

against

Jheaneel Bailey, Defendant.



2612-19



Steven Byrne, Esq.

Mullooly, Jeffrey, Rooney & Flynn, LLP

Attorneys for Plaintiff

6851 Jericho Turnpike, Suite 220

Syosset, NY 11791

Jheaneel Bailey

Defendant
Lyndon D. Williams, J.

In this action seeking to recover $4,200.00 for services rendered to defendant, plaintiff moves for entry of a default judgment against defendant following defendant's default on a stipulation of settlement.

Defendant has submitted no papers in opposition to the motion.

Entry of a default judgment requires, in addition to proper service of the summons and complaint, an affidavit executed by a party with personal knowledge of the merit of plaintiff's claim, or at least a verified complaint (CPLR 3215).

On this motion, plaintiff has submitted an affidavit of service for the summons and complaint and Affirmation of plaintiff's attorney. Pursuant to the affidavit of service, plaintiff effected service on defendant by delivering a copy of the summons and complaint to a person of suitable age and discretion. Service was made on November 2, 2019 at 8:25pm at 42 Washington Boulevard, Mount Vernon, NY. "John Doe " is described as a black male with black hair, approximately age 25-35 years old, 5'10" - 6' 0" tall and weighing 180-200 pounds. An additional mailing was made on November 6, 2019.

In support of the motion, plaintiff's counsel, Steven Byrne, affirms that on December 12, 2019, the parties entered into a stipulation of settlement. The agreement was filed with this court on January 9, 2020 and is attached to the motion papers. Therein, defendant acknowledged that [*2]$4,200.00 was due and owing to plaintiff. Counsel states that defendant made payments totaling $1,400.00 prior to defaulting on the terms on April 15, 2020. According to the payment history attached to the papers, defendant made a payment of $350.00 on December 6, 2019, $350.00 on January 3, 2020 and $700.00 on March 12, 2020. Per the stipulation, defendant agreed to pay $350.00 a month to plaintiff's counsel commencing on January 15, 2020 until the balance was paid in full. A default notice dated June 10 2020 was sent to the defendant. A copy is attached to the motion papers. Pursuant to the terms of the stipulation, upon a default of the defendant and a failure to cure within 10 days of receiving the default notice, the plaintiff may move for entry of judgment for the outstanding amount due. Here, the amount due and owing is $4,200.00 less the payments of $1,400.00.

"A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement. Absent such termination, the court retains its supervisory power over the action and may lend aid to a party who had moved for enforcement of the settlement" (Teitelbaum Holdings v. Gold, 48 NY2d 51, 53, 421 N.Y.S.2d 556 (C.A. 1979); Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 NY 435, 445-446 (C.A. 1928); Zeer v. Azulay, 50 AD3d 781, 785, 860 N.Y.S.2d 527 (2nd Dept. 2008); Pegalis v. Gibson, 237 AD2d 420, 421, 655 N.Y.S.2d 548 (2nd Dept. 1997).

The stipulation between the parties in this case provides that upon defendant's fulfillment and clearance of the payments in accordance with the stipulation, plaintiff's attorney will issue a discontinuance of the action. The plaintiff did not file a discontinuance and did not enter judgment prior to making the subject motion. Therefore, this court retains supervisory power over the original action.

The courts favor enforcement of stipulations and a party will not be relieved from the stipulation entered during litigation unless such party can demonstrate sufficient cause to invalidate a contract such as fraud, collusion, mistake, accident. Hallock v. State, 64 NY2d 36 (C.A. 1984); Gotard v. Gotard, 165 AD2d 824, 560 NYS2d 204 (2nd Dept. 1990). The defendant submitted no opposition to the enforcement of the stipulation that would invalidate the stipulation.

Based on the foregoing, the Court finds that plaintiff has demonstrated its entitlement to judgment as a matter of law. Once a plaintiff establishes that a defendant is in default, it is incumbent upon the defendant to come forward with a reasonable excuse for his default and to demonstrate a meritorious defense to the action to avoid the entry of a default judgment (Ennis v Lima, 305 AD2d 632 [2d Dept. 2003]). Defendant failed to submit any papers in opposition to the motion.

Motion granted. Judgment for plaintiff in the amount of $2,800.00.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion dated October 29, 2020; Affirmation in Support; Exh. 1-5.

Dated: January 27, 2021

Mount Vernon, New York

__________________________________

HON. LYNDON D. WILLIAMS

City Judge of Mount Vernon