Gutevich v Voller

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Gutevich v Voller 2022 NY Slip Op 32762(U) August 11, 2022 Supreme Court, Kings County Docket Number: Index No. 520252/2020 Judge: Richard J. Montelione 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. INDEX NO. 520252/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/16/2022 At an !AS T , Part DJMP of the Supreme Court of the tate of New York, held in and for the Coun of Kings, at the Courthouse, at 360 Adam Street, Brooklyn, New York, on the PRE S ENT: HON. RICHARD J. MONTELIONE th ay of , 2022. UG 1 1 1021 J~stice. ------------------------------------------------------•-------- ------X ' . ZLATA GUTEVICH f/k/aZLATA SOSIN, DEC! ION and ORDER Plaintim -against- Index No.: 520252/2020 MICHAEL VOLLER, Defendant. -------------------------------------------------------•-------- ------X ot. Seq. 1-2 The following e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Anne~ed_ _ _~ - - + - - - - Opposing Affidavits (Affinnatibns),_ _ _~ - - + - - - Affidavits/ Affirmations in Rep}y - - - ~ - - + - - - - - -7 0 L 23 Other Papers: - - - - - - - - - - ~ - - - 1 - - - - Upon the foregoing papers, the plaintiff rrioves ~ r a default judgm~nt pursuant to CPLR 3215 and for an order pursuant to CPLR 3212(a) Dr the relief dema!ided in the Complaint, upon the groundslthat the detendant, ichael Voller, har· defaulted in appearing and answering in this action, and furth r ordering (a) tha the plaintiff is seized and possessed as a joint tenant with right of survi orship of an undi ided one-half interest of the premises; (b) that the c.\efendant is seized d possessed as a j,i,int tenant with right of survivorship of an undivided one-half interest f the premises; (c j that the said premises are so situate that a Sale thereof iS neces ary, and that the s~id premises be sold by and under the direction of the Court and conv ance given to the!purchasers; and (d) that the proceeds of such sale be divided bJtvveen said parties according to their respective rights and interests as aforesaid after p yment of the cost1 ofthis action and of [* 1] 1 of 4 INDEX NO. 520252/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/16/2022 the said sale; and (e) that the 'defendant ac~ount t the plaintiff ror y and all rents or other monies received or col~ected from said pre ises, and that the efendant pay to the plaintiff any sum of money aS may be fourid due o said plaintiff ac ording to plaintiff's respective rights and interests as aforesaid.! Defendant cross moves for an order deeming def\ ndant's Answer d ted April 10, 2021 as timely or alternatively permission to deliv¢r and ·11e the answer latei and/or confirming and enforcing the Stipulation of Settlement by an between the part es dated December 29, 2020 as against the Plainjiff. This is a partition action between parties pteviou ly married. D~fen ant avers that as a s never transferred result of a mutual mistake, th,e premises, a ¢oope ative apartment, to him upon execution of their divorce agr¢emen and decree. Plaint ff commenced this action for partition of the property, filing the sum ons and complai ton October 20, 2020. On December 29, 2020, the parties ~ntere into a stipulation [settlement resolving the present lawsuit{NYSCEF dot. #12 . The stipulation p ovided that plaintiff was to prepare the document$ required to ti-ansfe of the properly to he defendant, and within 30 days of the executiPn of the stip4Iation defendant was to ay the plaintiff Twenty Thousand Dollars ($io,000.00) to be he! by her attorney p nding stipulation of discontinuance and release. ]he stipulatioll furth r provided th3.t tha · all transfer taxes and fees of the transfer and ciirrying charg¢s oft e apartment wou11·be the sole responsibility of the defendru:\t. : : I io Plaintiff contends that the defendant failed pay her the amount du pursuant to the stipulation, and as such the snpulation became a ullity. Plaintifffu11ther contends that defendant, having failed to cc)mply with the stipu ation, and hayingtiled to file an answer to the complaint is in idefault, and that sh is entitled to a de ult judgment grahting the relief sought in tµe complaint,linclu ng an appointmen, of a receiver to sell the apartment and divide the proceeds. · · In his cross-motion in opposition, defenda~t•s co nsel avers that he ~ttempted to send the $20,000.00 due under the terms of the stipulation via wire transfer tq plaintiffs counsel . ' on January 28, 2021, thirty days from the executi n of the stipulatiojl. Plaintiffs counsel did not send the wire transfer~ information tls requ sted to facilitate tjayment, but instead e-mailed defendant's counsel! referring to a: conve sation betwe_e~ copnsel :e~arding a proposed addendum to the agreement (NYSCEF oc. #20, exh1\nt Bj. Plamt1ffwas concerned that defendant was significantly;in arr ars on his mortgaff payments for the subject apartment and sought'to modify the agree ent to better prot¢ct herself from liability and because her credit rating was affecte . Defendant seek~ to enforce the agreement as written and exeCuted as the p~ies. : On March 2, 2021, plaintiffs'counsel e-mailed d fendant's counsel ~dvising him that inasmuch as the $20,000.00 payment was not ma e, they would move ahead seeking [* 2] 2 of 4 INDEX NO. 520252/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/16/2022 summary judgment and the appointment of a refi ree (NYSCEF doc Plaintiff avers that defendant' is in breach of the s ipulation as h'e co payment in some way other t~an a wire tr011sfer. laintiff further co should have filed an answer when he breaqhed th stipulation a)ld i #20, exhibit C). ld have tendered the tends that defendant thereby in default. ' "A defendant seeking to vac~te a default in ans ering a complaint ursuant to CPLR 5015(a) must show both a reiisonable excu$e for he default and the existence of a potentially meritorious defenise" (Natanel y Plaz Ins. Co., 200AD d 890,891; see CPLR 5015[a][l]; Elderco, Iµc. v Kneski <1cSons Inc., 183 AD3d 703, 703). "Whether there is a reasonable excuse for a default i~ a dis etionary, sui gene~is determination to be made by the court based dn all relevant factor, including the extbnt of the delay, whether there has been prejuf!ice to the opposing party, whether thete has been willfulness, and the strong ptfblic policy ill favor f resolving cases Pn the merits" (Natanel v Plaza Ins. Co., 2op AD3d at 891 [inte al quotationmar~s omitted]). . ! Here, given the totality of aU relevant factOrs, in uding the lack of ~ny evidence of willfulness by the defendant,: the short delay in fi ing the answer on~e the plaintiff notified defendant that the settlement was µot bei g honored, the la¢k af prejudice to the plaintiff from the delay, and \he strong public po icy in favor of resqlving cases on the merits, the defendant established a reasonable ex use for his defaul\ (see id.; Stango v Byrnes, 200 AD3d 821, 823;:Garcia v City of Ne York, 189 AD3~ 788, 789; P&H Painting, Inc. v Flintlock Co1'slr. Servs., LLC, I AD3d 1086, 108[?). In addition, the defendant established a poter\tially meritorious d fense to the actimj by proffering evidence that the plaintiff was in breach of the sf ulation by her refµsing to accept the payment as offered and her attempt to modify th agreement rather than honor its terms (see Khanal v Sheldon, 74 AD3d 894, 896). 6 C annell Street, LLC::, et al., v Urban Green Equities, LLC, __AD3d_ _, 2022 WL 2823164 (Mem), 4022 N.Y. Slip Op. . . 04613 (2d Dept., July 20, 2012). Accordingly, it is ORDERED that plaintiffs ,notion for a default j dgement, summaiy judgment and appointment of a receiver is denied in its eb.tirety and it is further ! ORDERED that defendant's cross-motion is gra led to the extent that the answer filed by defendant on April 13, 2012 I is deemed served and it is further ' ORDERED parties are to appear at the coµrthou e located at 360 Adams Street, Brooklyn, NY 11201, Courtroom 419, or as othe ise indicated on (he door of the courtroom, in Part 99 on OLfol,,,,- il 2:30pm, and it is !further l<> ~:). ORDERED that at the aforesaid time and place laintiff shall personally appear and shall bring with het a Bargain and:Sale deed traUsferri g herinterest-in the real property, i [* 3]- - - - - - - - - - - - - - -- ------------------- 3 of 4 INDEX NO. 520252/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/16/2022 which is the subject of the stipulation (NYSCEF oc. #20), to the d¢fendant, along with all related and necessary pap~n.vork necessilry to effect the tran'sfer ~fher interest to the defendant; and it is further ' ; : ORDERED that the plaintiff~ counsel is directed to bring a stipulation of discontinuance; and it is further ; ' ORDERED that at the afores~id time and place d fendant shall pers6nally appear and shall bring with him a certifi~d check in th~ amo t of$20,000.00 made payable to ; ' plaintiff; and it further ORDERED that in the event plaintiff or defendan fails to appe~r or (o bring with them the items directed in this order, the party who fail to appear or to br(ng with them the ' items directed in this order s~all show caus'e why ey should n?t belsanctioned under 22 NYCRR 130-1.1 et. seq. ' Any relief not explicitly granied herein is d~nied. ' The foregoing constitutes theidecision and order fthe court. 4of4 [* 4] 4 of 4

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