Opinion
Index No. SC-074-21/LF
08-08-2022
Gregory Curcio, and Allison Curcio, Claimant(s), v. Alex Lawrence, Defendant.
Alex Lawrence Pro Se Defendant
Unpublished Opinion
Alex Lawrence
Pro Se Defendant
Joshua P. Bannister, Little Falls City Court Judge
PARTIES, CLAIM, TRIAL
Claimants Gregory and Allision Curcio filed the instant action on April 14, 2021. The matter was adjourned several times during the COVID pandemic by the Hon. Joy Malone. Following Judge Malone's retirement, the matter was ultimately scheduled for a trial on January 20, 2021, before this Court, but was adjourned prior to that date at the Claimant's request due to health issues. Notices were mailed to the litigants to appear for trial on March 3, 2022. At that time, the Claimant appeared the Defendant defaulted. An inquest was held where this Court found the Defendant liable for $4,500.
Facts and Procedural History
On August 1, 2022, the Defendant submitted the instant Order to Show Cause to relieve the Defendant of the default judgment because he "was never noticed of the new court date to appear (bad service)". With respect to adjournment to March 3, 2022, defendant stated
"I never received any further notice to appear neither e-mail nor mail. I then received notice of Judgement in favor of the claimants. I would like to request the court to remove the judgement again[st] me based on bad service. [A]nd because of this I never had the opportunity to present myself before the Judge. [W]hen this case was heard and was ultimately awarded to the claimant[,] when [I] received Notice of Judgement I presented myself to the Court Clerk and had explained the bad service and she had acknowledged as well that there was no certified letter or any piece of mail recorded as being sent to me in regards to the new court date as well as no -mail of notification. [S]he then proceeded to inform me that I needed to [f]ile a motion to Vacate Judgement. I would also like to request the court to vacate quickly as this judgement is now holding up the sale of my house. [Y]our time and consideration is very much appreciated."
The Defendant went on to list - but not explain - "the following meritorious defense(s): a. The contract is unfair (unconscionable). b. The Plaintiff waited too long to bring this case (laches). c. Violation of the duty of good faith and fair dealing."
DISCUSSION
It is not clear whether the Defendant is making this application under CPLR § 317 or CPLR § 5015. CPLR § 317 applies when the Defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense." Although the Defendant seems to allege this in his application, it is clear from his application that he had notice of the proceedings and it is actually made in reference to the adjournment notice rather than the summons and notice. This means CPLR § 317 is inapplicable to this case. Accordingly, the relevant provision is CPLR § 5015 (a) (1) which provides relief for an "excusable default, if such motion 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, or, if the moving party has entered the judgment or order, within one year after such entry". Although not explicit in the statute itself, CPLR § 5015 "as interpreted by the New York courts, also requires the party seeking to vacate the order to provide both a reasonable excuse for the default, and a potential meritorious defense" (Barone v. Barone, 54 Misc.3d 599, 602 [NY Sup Ct 2016]; see also: Glob. Liberty Ins. Co. v. Shahid Mian, M.D., P.C., 172 A.D.3d 1332 [2019]).
This Court takes judicial notice of the notice mailed to the Defendant on January 21, 2022, notifying him that his "Small Claim case has been adjourned to March 3, 2022 at 2:15 PM for a Bench Trial." In any event, even if this Court were to assume for the sake of argument that the Defendant never received this notice which has not been returned to the Court in the mail, the Defendant has not submitted any documentary proof in support of his meritorious defenses.
CONCLUSION AND ORDER
On the evidence before the Court, it is hereby ORDERED:
1. That the Defendant's Order to Show Cause filed on August 1, 2022, is hereby DENIED without prejudice for Defendant to re-file with documentary proof of both a reasonable excuse for default along with a meritorious defense.
This is the Decision and Order of this Court.