Opinion
No. 09–011496.
2010-09-6
COMMISSIONER OF the STATE INSURANCE FUND, Plaintiffs, v. ERA CONTRACTING INC., Defendants.
Gregory J. Allen, Esq., for Plaintiffs. Anile Forcina & Maimone, PC, for Defendants.
Gregory J. Allen, Esq., for Plaintiffs. Anile Forcina & Maimone, PC, for Defendants.
F. DANA WINSLOW, J.
In this action to recover unpaid premiums for Workers Compensation Insurance, plaintiff moves to vacate the default judgment entered herein and for summary judgment pursuant to CPLR § 3212 in favor of plaintiff and against defendant in the amount of $108,058.91, plus interest, and the costs and disbursements of this action. The motion is unopposed. The Court automatically adjourns all motions that are submitted without opposition for one month, to determine whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such an adjournment considered in the event that there is a subsequent submission.
Plaintiff's account of the underlying facts is as follows. On September 17, 2009, a default judgment was entered in favor of plaintiff and against defendant in the amount of $108,058.91 plus interest, costs and disbursements (the “Judgment”). Subsequent to the entry of the Judgment, plaintiff received defendant's Answer, dated August 17, 2009 (the “Answer”), which had been mailed to plaintiff on or about September 11, 2009, but had been “mis-routed” to plaintiff. On or about October 2, 2009, plaintiff sent to defendant's attorney a stipulation to vacate the Judgment. Defendant's attorney did not respond. Plaintiff made further attempts to vacate the Judgment by stipulation, and by ex parte application to the County Clerk, which were unsuccessful. Accordingly, plaintiff brings the instant motion to vacate the Judgment and for summary judgment on the underlying claim.
The Court notes that none of the statutory grounds for vacatur pursuant to CPLR § 5015 or CPLR § 317 has been argued or appears to be applicable. Further, the Court notes that it is presented with the atypical situation in which the plaintiff seeks to vacate its own judgment. Nonetheless, neither of those circumstances is a bar to the relief sought. The Court has inherent discretionary power to vacate its judgments for good cause shown, and is not limited by the list of principal grounds for vacatur set forth in CPLR § 5015. McMahon v. City of New York, 105 A.D.2d 101.SeeSiegel, N.Y. Prac. § 426 (4th Ed.). Further, Courts have long recognized the right of a successful party to set aside a judgment in its favor “on grounds of mistake, inadvertence, excusable neglect or the like ...” Cooke v. Wozen Equities, Inc., 143 Misc.2d 578, citing Hatch v. Central Natl. Bank, 78 N.Y. 487.SeeSiegel, N.Y. Prac. §§ 426, 427 (4th Ed.)
Plaintiff has not explicitly stated the reason it seeks to vacate the Judgment. Plaintiff implies that the entry of Judgment was a mistake; i.e., that due to the “mis-routing” of the untimely Answer, plaintiff lost the opportunity to accept the Answer and proceed with the litigation. The Court infers that plaintiff is seeking the finality inherent in a judgment on the merits. Although this is not one of the statutory grounds for vacatur, the Court finds that it is a legitimate objective, and one that comports with sound public policy and the interests of the judicial system. The Court notes that the motion was duly served upon defendant's attorney, and no opposition was received by the Court. Accordingly, the Court finds that vacatur of the Judgment is warranted.
Turning to the issue of summary judgment, the Court finds that plaintiff has established a prima facie right to the relief sought. The motion is supported both by the affidavit of plaintiff's underwriter, and records kept in the ordinary course of plaintiff's business, which set forth and substantiate the derivation of the claim and the amount alleged to be due.
Defendant has failed to raise an issue of material fact sufficient to defeat summary judgment. Defendant's Answer consists solely of denials of knowledge or information sufficient to form a belief as to the allegations set forth in the Complaint, and presents no affirmative defense. No opposition to the instant motion has been received by the Court. Accordingly, the Court finds that plaintiff is entitled to summary judgment.
Based upon the foregoing, it is
ORDERED, that plaintiff's motion to vacate the Judgment and for summary judgment in favor of plaintiff and against the defendant in the amount of $108,058.91 with interest from the 10th day of November, 2006, plus the costs and disbursements of this action, is granted. Submit judgment on notice.
This constitutes the Order of the Court. Plaintiff shall serve a copy of this order upon defendant within 10 days of entry, and shall present proof of such service together with the proposed judgment.