Opinion
Index No. 513405/2022
08-11-2023
Empire Bonding & Insurance Co., Plaintiff, v. Mohammad Khan and Mitchell Kocerginski, Defendants.
Roach & Murtha, P.C., Farmingdale (Paul C. Bierman, of counsel), for Plaintiff. Richard A. Kraslow, P.C., Melville (Richard A. Kraslow, of counsel), for Defendant Mohammad Khan.
Unpublished Opinion
Roach & Murtha, P.C., Farmingdale (Paul C. Bierman, of counsel), for Plaintiff.
Richard A. Kraslow, P.C., Melville (Richard A. Kraslow, of counsel), for Defendant Mohammad Khan.
AARON D. MASLOW, J.
The following numbered papers were read on this motion:
NYSCEF Doc No. 4: Notice of Motion to Vacate Judgment
NYSCEF Doc No. 5: Affidavit of Mohammed Khan in Support of Motion
NYSCEF Doc No. 6: Exhibit A - Bail Receipts
NYSCEF Doc No. 7: Exhibit B - Affidavit of Confession of Judgment
NYSCEF Doc No. 8: Exhibit C - St. John's Riverside Hospital Patient Health Summary
NYSCEF Doc No. 9: Exhibit D - Clerk's Judgment
NYSCEF Doc No. 10: Affidavit of Service
NYSCEF Doc No. 11: Affidavit of Service
NYSCEF Doc No. 12: Request for Judicial Intervention
NYSCEF Doc No. 13: Affirmation of Timothy J. Murtha, Esq. in Opposition to Motion
NYSCEF Doc No. 14: Affidavit of Jason Fordin in Opposition to Motion
NYSCEF Doc No. 15: Exhibit A - Affidavit of Confession of Judgment
NYSCEF Doc No. 16: Exhibit B - Clerk's Judgment
NYSCEF Doc No. 17: Affidavit of Service
NYSCEF Doc No. 18: Affirmation of Richard A. Kraslow, Esq. in Reply
NYSCEF Doc No. 19: Exhibit A - Cellular Phone Log
NYSCEF Doc No. 20: Affidavit of Service
NYSCEF Doc No. 21: Sur-Reply of Timothy J. Murtha, Esq. in Opposition to Motion
NYSCEF Doc No. 22: Affidavit of Service
NYSCEF Doc No. 23: Letter from Richard A. Kraslow, Esq. to Court dated January 16, 2023
NYSCEF Doc No. 24: Letter from Timothy J. Murtha, Esq. to Court dated June 23, 2023
NYSCEF Doc No. 25: Letter from Richard A. Kraslow, Esq. to Court dated June 27, 2023
NYSCEF Doc No. 26: Affirmation of Engagement submitted by Richard A. Kraslow, Esq.
Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows.
I. Facts
This is a motion to vacate a judgment entered on an affidavit of confession of judgment sworn to by Defendant Mohammad Khan (hereinafter "Defendant"), in conjunction with an indemnity agreement between him and Plaintiff Empire Bonding and Insurance Co. (hereinafter "Plaintiff") (see generally NYSCEF Doc No. 4; NYSCEF Doc No. 7).
On August 26, 2021, Defendant's son Wasim Khan (hereinafter "Khan") was arrested by the New York City Police Department. Plaintiff was engaged as a bail agent, and posted bail in the amount of $300,000, whereupon Khan, the principal, was released from custody. Defendant paid the required collateral in the amount of $30,000. (See NYSCEF Doc No. 5 ¶¶ 3-6; NYSCEF Doc No. 6.) Bond issuance by Plaintiff was contingent upon Defendant swearing to an affidavit of confession of judgment in favor of Plaintiff in the amount of $300,000, to be entered in the event of bond forfeiture (see NYSCEF Doc No. 5 ¶ 6). Khan failed to appear on his scheduled court date of April 4, 2022, violating the terms of his release, whereupon a warrant was issued for his arrest and bail was forfeited (see id. ¶ 13). Judgment in the amount of $300,225 was entered by the Kings County Clerk on May 10, 2022, upon Defendant's affidavit of confession of judgment (see id. ¶ 14; NYSCEF Doc No. 9).
Defendant has moved for an order pursuant to CPLR § 5015 (a), in the interests of substantial justice, to vacate the judgment entered in favor of Plaintiff and against Defendant in the amount of $300,225, and for such other relief as this Court deems proper (see NYSCEF Doc No. 4).
II. Contentions
Defendant argues that the bond application, including the affidavit of confession of judgment dated September 10, 2021, is not enforceable against Defendant because Khan lacked the mental capacity to enter into an indemnity agreement. It is uncontested that Khan was chemically dependent on opioids and other substances at the time of his arrest and subsequent bail bond issuance. (See NYSCEF Doc No. 5 ¶¶ 7-9.) Defendant asserts that "at all times relevant hereto, Wasim Khan was, as a result of his chemical dependencies, nonfunctioning, with limited comprehension ability" (id. ¶ 8). Defendant evidences this claim by the St. John's Riverside Hospital Patient Health Summary (denoted above as NYSCEF Doc No. 8), wherein Khan's cognitive status is described as "understands concepts." Defendant alleges that these cognitive impairments rendered Khan not legally able to be contractually bound. (See NYSCEF Doc No. 5 ¶¶ 10, 15-17.)
Ostensibly, cognitive evaluations done in St. John's Riverside Hospital correspond to a cognitive model similar to those grounded in Bloom's Taxonomy, which is often employed in the context of education. Therein, comprehension of concepts is the second cognition level of six and is a precursor to application, analysis, synthesis, and evaluation of those concepts, which are skills necessary for critical thinking (see https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4511057/ [last accessed Aug. 11, 2023]).
Defendant cites to Ortelere v Teacher's Retirement, 25 N.Y.2d 196 [1969], asserting that laws governing acceptable mental capacity to contract preclude those who may understand the nature of the transaction but who, due to mental illness, cannot control their conduct (see id. ¶ 15). Defendant maintains that contracts involving a party who was incapable of voluntary decision-making at the time of the contract should be voided where circumstances dictate that the other party should have been aware of such limitations, citing to Blatt v Manhattan Medical Group, P.C., 131 A.D.2d 48 [1st Dept 1987] (see id. ¶ 16). Defendant asserts that this standard applies even where no actual psychosis exists. Citing to Padula v State of New York, 48 N.Y.2d 366 [1979], Defendant avers that voluntary actions resulting from impulse or irrational behavior beyond one's control are also grounds for the voidance of a contractual agreement (see id. ¶ 17).
It should be noted that the ruling in Blatt v Manhattan Medical Group, P.C. expressly distinguishes those mental illnesses that render one contractually incapacitated from those that do not. The former are required to affect a party to such an extent "as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction" (131 A.D.2d at 51; see also Nurse v Dacres, 160 A.D.3d 745, 747 [2d Dept 2018] [internal citations omitted]).
Defendant also alleges that he repeatedly informed Plaintiff that Khan continued to be under the influence of opioids and cocaine, and that Khan intended to flee the jurisdiction. Defendant alleges that Defendant, prior to the April 4, 2022 court date, made several requests to revoke the bond (see id. ¶ 11). Plaintiff assured Defendant that Plaintiff "would take the necessary precautionary measures to ensure Wasim Khan's attendance at his next scheduled Court appearance," and directed Defendant" not to contact the New York City Police Department and/or other governmental department(s)" (id. ¶ 12).
Defendant relies on the Court's power to vacate judgment in the interests of substantial justice, citing to the nineteenth-century case Ladd v Stevenson (112 NY 325 [1889]) (see NYSCEF Doc No. 5 ¶ 19). There, the Court held that "[t]he whole power of the court to relieve from judgments taken through 'mistake, inadvertence, surprise, or excusable neglect' is not limited... but in the exercise of its control over its judgments it may open them upon the application of any one for sufficient reason in the furtherance of justice" (112 NY at 332).
The record contains an affidavit sworn to by James Fordin, owner of Plaintiff Empire Bonding & Insurance Co. Therein, Fordin denies that Defendant communicated information at any time regarding a cognitive impairment resulting from Khan's chemical dependencies and maintains that "Plaintiff signed all documents at his leisure" (NYSCEF Doc No. 14 ¶ 10). Further, Plaintiff denies that there was any communication between the parties regarding Khan's continued chemical dependencies or regarding the likelihood of Khan fleeing the Court's jurisdiction (see id. ¶ 7). Fordin also swears that Plaintiff's standard practice upon being advised of a criminal client's intention to flee jurisdiction is to seek to withdraw the bond to avoid its forfeiture (see id. ¶ 8). Fordin alleges that Plaintiff never advised Defendant not to contact the New York Police Department, nor did Plaintiff represent an intention to ensure Khan's appearance at his next scheduled court date (see id. ¶ 9).
Plaintiff avers that the vacatur sought by Defendant is governed by CPLR § 5015 (a) (1), wherein excusable default is denoted as a ground upon which a court may vacate a judgment rendered. Plaintiff argues that there is no reasonable excuse for a default, since "Defendant does not deny he signed [the affidavit of confession of judgment] willingly or claim he misunderstood the agreement" (NYSCEF Doc No. 13 ¶ 11). In Plaintiff's view, Khan's mental capacity to contract is immaterial to the issuance of the bail bond since Defendant acted as a guarantor that his son would appear for all court proceedings (see id. ¶¶ 12-15, 17).
Additionally, Plaintiff denies that, as the bail agent responsible for issuing bonds, it possessed any responsibility to prevent Khan's fleeing the jurisdiction of the Court, and places that responsibility on Defendant as guarantor. Plaintiff alleges that Defendant was fully cognizant of the potential consequences of his son's failure to appear (see id. ¶¶ 14, 16).
In reply, Defendant, through the affirmation of his attorney, maintains that Plaintiff knowingly misrepresents the facts of the case in denying that there was any communication between the parties regarding Khan's chemical dependence and likelihood of absconding, as well as in denying any assurances made by Plaintiff that it would take precautions to prevent Khan's fleeing the jurisdiction (see NYSCEF Doc No. 18 ¶ 4). In further support of Defendant's claim that communications were had, Defendant provides a copy of Defendant's cell phone records entitled "Cellular Phone Log" (see id. ¶ 5, NYSCEF Doc No. 19). However, no sufficient authentication of the cell phone records is proffered. An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (see Warrington v Ryder Truck Rental, Inc., 35 A.D.3d 455 [2d Dept 2006]). Therefore, the attorney's affirmation that it is indeed a record of the calls made by Defendant is insufficient to render it admissible evidence, since the affirmant does not claim to have personal knowledge of Defendant's communications (see NYSCEF Doc No. 18).
Plaintiff, in sur-reply, raises questions about the admissibility of the Cellular Phone Log included in Defendant's reply that have been noted by this Court (see NYSCEF Doc No. 21). Plaintiff also asserts that the evidence is inadmissible since it was submitted in reply, citing to Jackson-Cutler v Long, 2 A.D.3d 590 [2d Dept 2003] (see id. ¶ 5).
The record includes a letter from Defendant to this Court dated January 13, 2023, in which Defendant objects to Plaintiff's sur-reply, citing to CPLR 2214, Garced v Clinton Arms Association (58 A.D.3d 506 [1st Dept 2009]), and Boockvor v Fischer (56 A.D.3d 405 [2d Dept 2008]) (see NYSCEF Doc No. 23).
III. Analysis
Firstly, although the questions raised by Defendant regarding the propriety of the submission of sur-replies are rendered moot by the following discussion of this motion's procedural defect, this Court deems it appropriate to note that courts have broad discretion in considering sur-replies (see Gluck v New York City Transit Authority, 118 A.D.3d 667 [2d Dept 2014]; U.S. Bank Trust, N.A. v Rudick, 156 A.D.3d 841 [2d Dept 2017]). Here, Plaintiff's sur-reply is duly considered.
CPLR 5015 provides that the court may relieve a party from a judgment rendered upon several grounds. Those grounds include excusable default; the discovery of new evidence which, if introduced at the trial, would probably have produced a different result; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification or vacatur of a prior judgment or order upon which it is based (see CPLR 5015).
The Second Department has held, however, that "CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated, and a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (40 BP, LLC v Katatikarn, 147 A.D.3d 710 [2d Dept 2017], citing Woodson v Mendon Leasing Corp., 100 N.Y.2d 68 [2007]). This is an inherent judicial power expressly invoked by Defendant (see NYSCEF Doc No. 4; see also Galasso, Langione & Botter, LLP v Liotti, 81 A.D.3d 884 [2d Dept 2011]).
The inherent power available to the court to vacate its judgments is not without limitations. A current standard used to determine the propriety of vacating a judgment in the interests of substantial justice is delineated in JPMorgan Chase Bank, N.A. v Dev, 176 A.D.3d 691 [2d Dept 2019] [emphasis added], wherein it is stated that
[A] court's 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,] mistake, inadvertence, surprise or excusable neglect (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742 [internal quotation marks omitted]; see CitiMortgage, Inc. v Maldonado, 171 A.D.3d 1007; Aurora Loan Servs., LLC v Dorfman, 170 A.D.3d at 788).
The general rule that the commencement of a plenary action is the appropriate means of obtaining relief for a party seeking to vacate a judgment has been upheld where the judgment was entered upon an affidavit of confession of judgment (see L.R. Dean, Inc. v International Energy Resources, Inc., 213 A.D.2d 455 [2d Dept 1995]; Malhado v Cordani, 153 A.D.2d 673 [2d Dept 1989]; Wilk v Cohen, 131 A.D.2d 466 [2d Dept 1987]). A vacatur in the interests of substantial justice is especially inapplicable in a case such as this, "where sharply contested issues of fact were presented which should not have been resolved upon conflicting affidavits but should have been reserved for trial in a plenary action" (L.R. Dean, Inc., 213 A.D.2d at 456; see also Rubino v Csikortos, 258 A.D.2d 638 [2d Dept 1999]).
The question of whether concerns regarding Khan's cognitive capacity to contract were expressed to Plaintiff and whether Plaintiff ever made assurances regarding Khan's court appearances are in contention, and should not be resolved upon affidavits but rather by trial in a plenary action (see Scheckter v Ryan, 161 A.D.2d 344 [1st Dept 1990]). "We observe that under CPLR 5015 (a) (3) a court which 'rendered' a judgment may vacate it upon motion based on fraud or misrepresentation. However, the words 'render * * * judgment' refer generally to the pronouncement of the court's judgment on a given state of facts and are 'not used with reference to judgments by confession' (Black's Law Dictionary 1460 [4th ed]). In any event, CPLR 5015, even if applicable, provides only that the court may relieve a party from a judgment in the circumstances specified. In the light of the numerous factual issues raised, we have concluded that the IAS court properly exercised its discretion in denying the motion, with leave to commence a plenary action to vacate the judgment." (Id. at 345.) Defendant's contention herein that the judgment was taken through fraudulent means is immaterial (see Fabrizio, Radmin, Buksbaum & Co. v Giordano, 17 Misc.3d 1126 (A), 2007 NY Slip Op. 52151(U) [Dist Ct, Nassau County 2007]).
The court has vacated confessions of judgment pursuant to motion where such a confession was defective on its face (see Corrales v Walker, 20 Misc.3d 285 [2008]). The court has also done so where the judgment was entered by the County Clerk without authority or in violation of its terms (see id.; Ripoll v Rodriguez, 53 A.D.2d 638 [2d Dept 1976]; Rae v Kestenberg, 23 A.D.2d 565 [2d Dept 1965]). Here, however, the confession of judgment conforms to its requirements as provided by CPLR 3218, so there is no egregious defect warranting the implementation of this Court's power to sidestep the standard vacatur route. Defendant willingly entered into a valid confession of judgment as a guarantor, with full comprehension of the contingent liability he incurred. A vacatur of the judgment requires the commencement of a new plenary action.
CPLR 3218 requires that a confession of motion via affidavit must comply with the following requirements: include the sum for which judgment may be entered, authorize the entry of judgment, state the county where the defendant resides and, if applicable, state that the interest rate for consumer debt pursuant to CPLR 5004 applies; if the judgment to be confessed is for money due or to become due, state concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due; if the judgment to be confessed is for the purpose of securing the plaintiff against a contingent liability, state concisely the facts constituting the liability and showing that the sum confessed does not exceed the amount of the liability. The confession of judgment in question is fully compliant with the statute.
IV. Conclusion
On the instant motion to vacate judgment, Defendant fails to establish entitlement to the vacatur of the judgment entered on a confession of judgment on May 10, 2022. Defendant's motion is DENIED without prejudice to his right to commence a plenary action.