Gomez v. Ruff Ryders, Inc.

Full title: MICHAEL GOMEZ, Plaintiff, v. RUFF RYDERS, INC., RUFF RYDERS ENTERTAINMENT…

Court: Supreme Court, New York County

Date published: Dec 20, 2022

2022 N.Y. Slip Op. 34314 (N.Y. Sup. Ct. 2022)

Opinion

No. 650152/2019 MOTION SEQ. No. 003 004

12-20-2022

MICHAEL GOMEZ, Plaintiff, v. RUFF RYDERS, INC., RUFF RYDERS ENTERTAINMENT, INC., RUFF RYDERS PRODUCTIONS, INC., DEAD GAME MUSIC PUBLISHING, INC., DEVELOPMENT OUTREACH, INC., DEAD GAME PUBLISHING, INC. Defendant.

William Perry, Judge

Unpublished Opinion

MOTION DATE 12/30/2021

PRESENT: HON. WILLIAM PERRY Justice

DECISION + ORDER ON MOTION

William Perry, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 003) 84, 85, 86 were read on this motion to/for MODIFY ORDER/JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 88, 89, 90, 91, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 108 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

Plaintiff Michael Gomez moves for an order (Mot. Seq. No. 003) correcting the clerk's calculation of interest in the judgment entered on December 8, 2021, to reflect the sum of $46,325.67 instead of $708,461.84. Defendants Ruff Ryders, Inc., Ruff Ryders Entertainment, Inc., Ruff Ryders Productions, Inc., and Dead Game Publishing, Inc. (collectively the Ruff Ryders Entities) move (Mot. Seq. No. 004), pursuant to CPLR 5015(a), for an order (1) vacating this court's May 4, 2021 order striking their answer and affirmative defense and directing an assessment of damages and (2) vacating the December 8, 2021 judgment entered against defendants.

BACKGROUND / PROCEDURAL HISTORY

This is a breach of contract action wherein plaintiff Michael Gomez seeks to recover damages for unpaid royalties for musical works and sound recordings produced and written or co-written by plaintiff and released and administered by defendants. The procedural history of this action was discussed in this court's orders of December 16, 2019 (NYCEF Doc. No. 54) (the December 2019 Order), September 9, 2020 (NYCEF Doc. No. 69) (the September 2020 Order) and April 30, 2021 (NYCEF Doc. No. 74) (the April 2021 Order), familiarity with which is presumed. As is relevant here, plaintiff served a First Notice for Discovery and Inspection on April 12, 2019. When no documents were produced plaintiff moved to compel (Mot. Seq. No. 001). In opposition to the motion, the Ruff Ryders Entities' CEO Joaquin Dean submitted an affidavit (NYCEF Doc. No. 46) asserting that any records relating to the Ruff Ryder Entities had "probably been lost or destroyed", and that although defendants received royalty payments and statements from various record labels "these statements are often not keep [sic] but are discarded or have been misplaced" (id., ¶¶ 23, 25).

The parties attempted to resolve the motion through a November 6, 2019 preliminary conference order (NYCEF Doc. No. 53), which directed defendants to produce the documents within 30 days. Defendants failed to do so. In the December 2019 Order the court found that defendants had willfully failed to comply with the PCO and held that their answer would be stricken if they failed to comply within another 30 days (December 2019 Order at 2-3).

Defendants again failed to comply. Shortly thereafter, on February 3, 2020, their counsel moved to withdraw (Mot. Seq. No. 002). Plaintiff cross-moved to strike defendants' answer in accordance with the December 2019 Order. In the September 9, 2020 Order, the Court relieved defendants' counsel and provided defendants with "one final opportunity" to avoid a default and an inquest by complying with the outstanding discovery demands by December 1, 2020 (September 2020 Order at 5).

Compliance was not forthcoming and in the April 2021 Order, this court struck defendants' answer and directed an assessment of damages (April 2021 Order at 2-3). After hearing testimony and receiving evidence at an inquest on August 19, 2021 (NYCEF Doc. No. 79), the Court issued a judgment in the total amount of $3,286,034.57 against defendants on December 8, 2021 (NYSCEF Doc. No. 83).

DISCUSSION

The motion to vacate is denied. "A party seeking to vacate a judgment entered upon default under CPLR 5015(a)(1) must show a reasonable excuse for the default as well as a potentially meritorious defense" (Soffer v Montanez, 198 A.D.3d 606, 606 [1^st Dept 2021]; 60 E. 9th St. Owners Corp. v Zihenni, 111 A.D.3d 511, 512 [1^st Dept 2013]). The determination of whether the excuse is reasonable "generally lies within the sound discretion of the motion court" (Rodgers v 66 E. Tremont Heights Hous. Dev. Fund Corp., 69 A.D.3d 510, 510 [1^st Dept 2010]). The failure to demonstrate a reasonable excuse obviates the need to consider the existence of a potentially meritorious defense (Besler v Uzieri, 179 A.D.3d 628, 628-29 [1^st Dept 2020]).

In opposition to the motion, defendants contend that their non-compliance should be excused because they lack documents responsive to plaintiff's demands, and because their prior counsel failed to apprise them of the status of the case. Neither of these excuses is reasonable in view of the record before the court. First, the argument that defendant do not possess any records was raised and rejected on the motion to compel and cannot be relitigated now. Dean's new averments regarding the unavailability of the documents in his affidavit in opposition (NYSCEF Doc. No. 90), like those he offered in opposition to the motion to compel, are vague and conclusory. He merely states that he was unable to find any documents after a "diligent search" (id., ¶¶ 2-4). This representation is insufficient because "it fail[s] to include any details as to when the search was performed, where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, and whether a search was conducted in every location where the records were likely to be found" (Vazquez v Lambert Houses Redevelopment Co., 110 A.D.3d 450, 451 [1^st Dept 2013] [internal quotation marks and citations omitted]; Henderson-Jones v City of New York, 87A.D.3d 498, 505 [1st Dept. 2011]).

Furthermore, defendants' denial that they possess any relevant records is belied by their previous concession that they have received royalty payments and statements on a continuing basis. And even if the royalty statements were discarded, the payments would necessarily be evidenced by another form of paper or electronic trail such as bank statements. To the extent defendants suggest that the documents may have been lost, destroyed, discarded, not kept or misplaced, even despite the pendency of this action (Vincent L. ex rel. Chanel T. v AKS 183rd St. Realty Corp., 118 A.D.3d 602, 603 [1^st Dept 2014]; Gray v Jaeger, 17 A.D.3d 286, 287 [1^st Dept 2005], denying the motion to vacate on the ground of spoliation would be appropriate.

Additionally, the documents were at a minimum under defendants' control even if they were not in their possession. Defendants could have obtained them from the third parties who paid the royalties. Although plaintiff was ultimately able to obtain them by subpoena from those parties and present them at the inquest, that did not excuse defendants' own independent obligation to produce them. Moreover, plaintiff's ability to procure the documents only strengthens the inference that defendants' default was willful ((Vazquez, 110 A.D.3d 450, 451) ("Such an inference is further supported by defendant's failure to explain the numerous discrepancies between its discovery responses and its employee's deposition testimony as to the existence of responsive records").

Defendants' excuse that their former counsel did not alert them to the September 2020 Order notifying them of his withdrawal, and the December 1, 2020 deadline for compliance, is also deficient. "While law office failure may constitute a reasonable excuse for a default (see CPLR 2005), it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse" (Yaghmour v Mittal, 208 A.D.3d 1283, 1287 [1^st Dept 2022] [internal quotation marks and citations omitted]). Accordingly, "a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse" (id., quoting White v Daimler Chrysler Corp., 44 A.D.3d 651, 651 [2d Dept 2007]).

Here, Dean has offered only a general denial that he was updated regarding the progress of the litigation (Dean Aff. ¶ 4). In contrast, defendants' former counsel submitted a detailed affirmation (NYSCEF Doc. No. 72) stating that he personally served Dean at 3:00 p.m. on September 25, 2020, spoke to him the day before, and made a number of earlier attempts to contact him (id. at ¶¶ 2-5). Because Dean has not denied or even addressed those specific allegations, the defense of law office failure must be rejected (see 60 E. 9th St. Owners Corp., 111 A.D.3d 511, 512 [client's denial of notice rejected where "[f]ormer counsel's affidavit of service raise[d] a presumption that on December 9, 2011 defendant was given notice of the January 18, 2012 conference by both certified mail and regular mail"]; Wilmington Sav. Fund Soc'y, FSB v Rodriguez, 197 A.D.3d 784, 786 [2d Dept 2021] [defendant's "claim of law office failure was refuted in an affidavit sworn to by his prior counsel . . . who stated that he and defendant had decided together not to pursue the forgery claim after discovering an error in the translation of the Peruvian document upon which the claim was based"]; Baruch v Nassau County, 134 A.D.3d 658, 659 [2d Dept 2015] ["plaintiff's claim of law office failure was refuted by a letter written by his counsel in October 2012, showing that the plaintiff's counsel was aware of the Village's default at that time"]; Bryant v NYCHA 69 A.D.3d 488, 489 [1^st Dept 2010] ["defendant's bare denial of receipt of the motion papers, and of a subsequent letter from plaintiff's counsel referring to the pending motion, was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt arising from that proof"]).

As noted above, insofar as defendants have not provided a reasonable excuse for their default, it is unnecessary to consider the merits of their statute of limitations defense.

Finally, plaintiff's motion to correct the clerk's calculation of interest is granted without opposition.

Accordingly, it is hereby

ORDERED that defendants' motion to vacate this court's May 4, 2021 order and the December 8, 2021 judgment is denied, and it is further

ORDERED that plaintiff's motion to correct the clerk's calculation of interest is granted, and it is further hereby

ADJUDGED that plaintiff MICHAEL GOMEZ whose address is 71 Tower Place, Yonkers, New York, 10703, shall have judgment against and recover from defendants RUFF RYDERS, INC., whose address is 33 South Broadway, Yonkers, New York, 10701; RUFF RYDERS ENTERTAINMENT, INC., whose last known address is 314 West 53rd Street, Suite 35, New York, NY, 10019; RUFF RYDERS PRODUCTIONS, INC., whose last known address is 200 West 57th Street, Suite 200, New York, NY, 10019; and DEAD GAME PUBLISHING, INC. whose last known address is 200 West 57^th Street, Suite 200, New York, NY, 10019 in the amount of $1,692,579.44, plus interest on that amount from the date of the inquest, August 19, 2021, to December 8, 2021 in the amount of $46,325.67, together with costs and disbursements in the amount of $1,688.50 as taxed by the Clerk, making in all a sum total of $1,740,593.61, and that plaintiff shall have execution therefor.

This corrected Judgment is entered nunc pro tunc and shall accrue interest from December 8, 2021.