Kwiatkowski v Horne

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Kwiatkowski v Horne 2023 NY Slip Op 33208(U) September 14, 2023 Supreme Court, Erie County Docket Number: Index No. 009986/2007 Judge: Raymond W. Walter 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: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 INDEX NO. 009986/2007 RECEIVED NYSCEF: 09/14/2023 STATE OF :-JEW YORK SUPREME COURT: COUNTY OF ERIE GREGORY IVI. K\VIATKO\VSKI Plaintiff, Decision & Order Index No. 009986/2007 V. CARIOL J. RORKE Defendant. Frctnh ,J. ~Jacobson, Esq. Lau: O//fre of Ralph C. Lor£go Attorney for Plaintiff vV. 1Veil Eggleston, Hsq. Kirhland & Elhs LLP A.ttorney for Defendants \Valter, .J.: The follcrwing papers were read on the Defendant's l\fotion to Vacate along with the transcript from oral arguments held before Justice NO\vak on l\fay 25, 2023. NYSCEF Doc. N!!,_ Notice of I\.Iotion. l\fomorandum of La\v, Exhibits............................... 7-22 Plaintiff's Affirmation/Affidavit in Opposition to :rviotion and Exhibits... 28-48 Pfaintiff s l\·]emorandum of Law in Opposition to ).fotion........ .... ... .. . ... 4}) Defendant's Supplemental Submission to the Court............................ 50-51 Plaintiff:-:- Suppk~mcntal Submission to the Court............................... .52-55 This action was originally commenced by Mr. Gregory M. Kwiatkowski ("Kwiatkowski" or the "Plaintiff') on October 15, 2007, by the filing of a Summons and Verified Complaint asserting a cause of action for defamation. On or about [* 1] 1 of 7 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 INDEX NO. 009986/2007 RECEIVED NYSCEF: 09/14/2023 :-Jovember 2, 2007, l'vls. Cariol J. Horne ("Horne'' or the "Defendant") served her Certified .:\ns\vcr asserting affirmative defenses and counterclaims. The litigation proccH1dcd with discovery and depositions taking place over the next couple of years. On l\fay 8. 2009. the! Hon. ,James Di11on determined that Kwiatkowski was likely to be successful in the action and ordered an attachment of $20,000 owed to Horne by the City of Buffalo. On August 17, 2010, the Hon. Frederick Marshall issued an Order granting Kwiatkowski summary judgment as to liability on the merits. According to the Order, the Defendant, by her attorney, Barbara l'vL Sims. Esq., failed to submit opposition papers but appeared and \Vas heard on the motion. On February 18, 2011, Justice :rviarshall issued a judgment awarding K\\'iatkowski money damages of SGG,000 and directing the City of Buffalo to pay over the $20,000 that had been attached in 2009. On February 2,1, 2011, the judgement \Vas formally entered by the Erie County Clerk. The $20,000 was paid by the City of Buffalo and applied to the judgment. On November 1 n, 202L the Hon. Paul \Vojtaszek granted an Orch~r renewing the judgment pursuant to CPLR § 5014. Horne had opposed the renc\val judgment and moved to vacate the underlying judgment.. ,Jusbce \Vojtaszek denied the motion to vacate, without prejudice, on procedural grounds. On February 16, 2023, t.he renQwaljudgmcnt was formally entered by the Erie County Clerk and on March 8, 2023, Plaintiff placed an Execution with Notice to garnishee with the Erie County Sheriff, seeking to execute funds owed to the. Defendant by the City of Buffalo. [* 2] 2 of 7 INDEX NO. 009986/2007 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 09/14/2023 On I'viarch 27. 202:3, the Defondant filed the present motion seeking an Order annulling and reversing the original judgment s'Tanted on February 8, 2011, and entered on February 18, 2011, and directing the Plaintiff to return the $20,000 plus statutory interest a\varcled to him in 201 L The motion is made pursuant to the Court's inherent authority to vacate its prior judgment, when necessary, in the interest of substantial justice. CPLR § 5016 empmvers a court to vacate a judgment or order for several reasons, including, excusable default, newly discovered evidence, fraud, misrepresentation or misconduct, lack of jurisdiction, or upon the reversal, modification or vacatur of a prior judgment. Furthe?r, the Court of Appeals in Woodson C' Ivfendon Leasing Corp., (100 NY2d G2, G8 [2003] citing Ladd v Stevenson, 112 NY :325, 332 [188B]) recognized that ''[iln addition to the grounds set forth in section 5015(a), a court may vacate its O\vn judgment for sufficient reason and in the interests of substantial jusfice" (see also In re Foreclosure o/ Ta.x Liens, 59 AD3d 10(-i5, [4Ll 1 Dept. 2009]; KLCR Land Corp. v JVew Yorh State Elec. & Gas Corp., 15 AD3d 7Hl, 720 [3 rd Dept. 2005)). The? Courts, however, have held that this "inherent power to exercise control over its judgments is not. plenary, and should be resorted to only to relieve a party •from judgments taken through [fraud,J mistake, inadvertence, surprise or excusable neglect'" (McKenna v Nassau County, 61 NY2d 739 [1984] quoting Ladd v Stevenson 112 NY at 332; see also Matter of Arbitration Between City of Syracuse and Lee 163 AD3d 1394, 1398 [4th Dept. 2018]; Quinn v. Guerra, 26 AD3d 872,873 [* 3] 3 of 7 INDEX NO. 009986/2007 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 09/14/2023 [4th Dept. 2006]). In addition, the Courts have warned that "a motion to vacate should not be utilized as a means by which to raise an issue of law that could have been pursued in the course of a timely perfected appeal" (KLCR Land Corp., 15 AD3d at 720-721 citing Mckenna v Nassau County, 61 NY2d at 741-742). The Defendant urges the Court to exercise its discretionary authority to vacate its own judgment based on four intertwined arguments. First, that Horne was unable to present any evidence prior to summary judgment and such judgment constituted a "de facto default". Second, that Horne had a valid excuse for her failure to respond. Three, that Horne would have been able to mount a meritorious defense. And fourth, that through Cariol's Law, passed by the city of Buffalo and signed into law on or about October 28, 2020, and Justice Dennis Ward's decision of June 17, 2021, vacating the City of Buffalo's termination of Horne, the facts now support the truthfulness and lack of actual malice of Horne's alleged statements. As stated above, this Court, in addition to the authority granted to it under CPLR § 5015, has the inherent authority to vacate its own judgments for sufficient reason and in the interest of substantial justice (see Woodson at 68). Such authority is not, however, unlimited (see Matter of Arbitration Between City of Syracuse and Lee, at 1398). This Court may only relieve a party from a judgment "taken through ffrnud,] mistake, inadvertence, surprise or excusable neglect" (Id. at 1398 quoting Afcl-wnna, at 742). None of those factors are present in this matter. The Defendant's arguments that her attorney's failure to file opposition papers to the motion for summary judgment should be treated as a de facto default [* 4] 4 of 7 INDEX NO. 009986/2007 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 09/14/2023 judgment is without merit. It is settled law that "an order entered on a motion for summary judgment constitutes a disposition on the merits" (Emmons v Broome County, 180 AD3d 1213, 1216 [3 rd Dept. 2020]). In addition, the Defendant was represented by counsel through every stage of the litigation and Horne's attorney appeared and was heard on the motion for summary judgm~nt (see Plaintiff Ex. F, Doc. No. 35, Order granting summary judgment dated August 17, 2010). Regardless, the Defendant fails to offer any facts supporting law office failure. Her affidavit, (Defendant's Ex. D, Doc. No.12), only provides conclusory statements without evidence of a reasonable excuse for her attorney's failures. The Defendant also argues that she could have mounted a meritorious defense but for her attorney's failures. The Defendant states that she would have affirmed the truthfulness and lack of actual malice of her alleged defamatory statements. Throughout numerous adversarial judicial and quasi-judicial proceedings, however, Horne's version of events were rejected (see Plaintiff's Ex. AF, Doc Nos. 30-35). In addition, the Plaintiff pleaded actual malice in his complaint and Justice Marshall was in the best position to decide the merits of the motion. This Court, after thirteen years and given the record before it, is not in a better position to substitute its judgment in place of Justice Marshall's. The Defendant also had an opportunity to appeal the decision and failed to do so. "[A] motion to vacate should not be utilized as a means by which to raise an issue of law that could have been pursued in the course of a timely perfected appeal" (KLCR Land Corp, at 720). Granting this motion to vacate on such grounds would [* 5] 5 of 7 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 INDEX NO. 009986/2007 RECEIVED NYSCEF: 09/14/2023 be an abuse of discretion. Finally, the Defendant asks this court to reconsider its decision solely in the interest of substantial justice considering subsequent determinations by the City of Buffalo and Justice Ward's Order (Defendant's Ex. I, Doc. No. 17). Even if this Court had such unlimited authority, which, as discussed above, it does not, this case does not warrant the vacatur of Justice Marshall's decision. Horne's reliance on the passage of "Cariol's Law: Duty to Intervene" on October 28, 2020, is misplaced. Defendant cites the following sentence from the law: "Whereas, in 2006, Police Officer Cariol Horne intervened to save a civilian from being harmed by a fellow police officer and had her employment terminated" (see Plaintiff Ex. H, Cariol's Law: Duty to Intervene, Doc. No. 16). There is nothing in the substance of "Cariol's Law" that addresses the defamatory statements made by Horne against Kwiatkowski. The Court will not and should not give weight to legislative pronouncements found in "whereas" clauses masquerading as factual determinations. Such determinations are not subject to the adversarial process of a judicial proceeding. Neither are they subject to any type of due process protections or rules of evidence. It would be unjust to take one sentence from this law and use it as the basis to declare any statement made by Horne against Kwiatkowski as the truth and a complete defense against defamation. Additionally, Justice Ward's Order has no bearing on the judgment in favor Kwiatkowski against Horne in the instant matter (Defendant's Ex. I, Doc. No. 17). [* 6] 6 of 7 FILED: ERIE COUNTY CLERK 09/14/2023 03:26 PM NYSCEF DOC. NO. 58 INDEX NO. 009986/2007 RECEIVED NYSCEF: 09/14/2023 Kwiatkow ki wa not a party in that proceeding. It wa olely between Horne, the plaintiff, and the City of Buffalo, the defendant. Justice Ward wa not a ked to review any of the fact and law of the in tant ca e. Ju tice Ward made hi deci ion on the fact and law a it pertained to the wrongful termination of Horne by the City of Buffalo. It i also apparent from Ju tice Ward' deci ion that the defendant, City of Buffalo, barely oppo ed Horne' motion and apparently acquie ced to the relief he wa eeking. Finally, Cariol's Law § 13-21.5 pecifically provided for 'Retroactive Protection for Officer " which Justice Ward cited a a basi for hi holding. o uch provi ion are applicable in thi case. Accordingly, it i ORDERED that Defendant's motion for an order and judgment annulling and rever ing the Order, Verdict, and Judgement of thi Court i ued Augu t 17, 2010, February 8, 2011 and February 18, 2011, is DENIED in it entirety. E TERED : [* 7] 7 of 7

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