Opinion
No. CV–11–3884.
02-26-2016
Thomas P. HALLEY, Plaintiff, v. Heather SERVEDIO, Defendant.
Thomas P. Halley, Esq., Poughkeepsie, Plaintiff pro se. David A. Sears, Esq., Law Office of David A. Sears, Poughkeepsie, Attorney for the Defendant.
Thomas P. Halley, Esq., Poughkeepsie, Plaintiff pro se.
David A. Sears, Esq., Law Office of David A. Sears, Poughkeepsie, Attorney for the Defendant.
FRANK M. MORA, J.
Plaintiff has filed a notice of motion, dated November 23, 2015, seeking an Order vacating the dismissal entered against him on May 13, 2015, and restoring the matter to the calendar pursuant to Civil Practice Law & Rules § 3404. Plaintiff claims that he has a reasonable excuse for failing to appear in the action based upon the fact that he was undergoing medical treatment at the time. Defendant has opposed the motion and plaintiff has filed a reply affirmation in further support of his motion. The following papers have been considered in determining the motion:
C.P.L.R. § 3404 applies to Supreme Court or County Court.
1. Plaintiff's affirmation, dated November 23, 2015, with Exhibits A through B;
2. The affirmation of defense counsel, David A. Sears, Esq., dated December 2, 2015, with Exhibits A–D;
3. Plaintiff's reply affirmation, dated December 9, 2015, together with Exhibits A–F.
Now, having duly deliberated upon the motion, the opposition, the reply, the supporting affirmations, exhibits and all of the papers filed hereinbefore, the Court finds and determines the application as follows:
FACTS & ARGUMENTS
On or about November 25, 2011, plaintiff sued the defendant claiming four (4) separate causes of action seeking $15,000.00 on each cause of action (conversion, replevin, breach of contract, and money damages) arising out of defendant's disposal of plaintiff's belongings after plaintiff sold defendant his house. In lieu of filing an answer, defendant filed a motion for summary judgment seeking to dismiss the action on the grounds that its defense is based upon documentary evidence and that plaintiff's lawsuit failed to state a cause of action. This Court granted the defendant's summary judgment motion and dismissed the action. Plaintiff appealed. Via decision dated May 15, 2014, the Appellate Term reversed this Court's Order on the grounds that the documentary evidence did not conclusively establish a defense to the action. The matter was restored to this Court's calendar and a preliminary conference was scheduled for October 28, 2014, at which time the parties appeared and entered into a preliminary conference and stipulation order setting forth a discovery schedule. The parties were ordered to appear for a compliance conference on January 26, 2015, but same was adjourned to February 23, 2015. On February 23, 2015, a new motion schedule was set and depositions were scheduled and held on March 18, 2015. The parties were to return to Court on May 13, 2015, for a conference, at which time the defendant appeared, but the plaintiff failed to appear. Having not heard from the plaintiff, the matter was dismissed by the Court. N.Y.C.R.R. § 210.14. Approximately seven (7) months later, on December 2, 2015, plaintiff filed the instant motion seeking vacatur of the dismissal and restoring the case to the calendar arguing that he failed to appear due to medical problems he was having, and that he has a meritorious defense because the Appellate Term reversed the motion to dismiss.
Defendant has opposed the motion arguing that the Court should reject plaintiff's argument that he has a reasonable excuse for a default because plaintiff failed to file any medical proof, and plaintiff never mentioned or indicated to defense counsel that he was involved in medical difficulties that prevented him from attending to this litigation. Defendant also avers that plaintiff has been anything but diligent in the prosecution of this claim, citing numerous delays and dilatory tactics plaintiff has employed during the course of this litigation which created a reasonable inference that plaintiff intended to abandon this litigation. Sears affirmation, dated December 2, 2015, ¶ 5–6,8. Finally, defendant argues that the Appellate Term took no position in determining whether the plaintiff's claim was meritorious. Therefore plaintiff's reliance upon the Appellate Term decision does not establish a meritorious claim—which is necessary to restore the matter to the calendar. Defendant has attached a copy of the deposition transcript in support of her claim that there is no factual basis upon which plaintiff could ever be awarded judgment for damages, for plaintiff cannot even identify the property that was allegedly destroyed. Sears affirmation, dated December 2, 2015, ¶ 7, 9–10.
In reply, plaintiff argues that he had no intent to abandon the case and that defendant has not been prejudiced by the delay. Plaintiff has filed copies of his medical records to support his claim that he had a reasonable excuse for not appearing. Plaintiff's medical records show proof including the following:
• Plaintiff was treated by Orthopedic Associates in April 2015 for a fracture.
• Plaintiff was in a nursing facility from April 27, 2015–June 10, 2015.
• Plaintiff was treated at Memorial Sloan Kettering between June 10, 2015–June 15, 2015, and July 6, 2015–July 8, 2015.
• Plaintiff received radiation treatment from June 2015 through August 2015. Plaintiff claims he suffered fatigue for several weeks thereafter, and asks the court to take judicial notice that fatigue is a side effect of radiation.
LEGAL ANALYSIS AND CONCLUSION
A. Plaintiff's Motion is procedurally defective.
It is material to highlight that in this Court's decision and order dated April 24, 2012, that the Court emphasized a procedural defect in plaintiff's opposition papers that plaintiff has replayed identically in the instant motion. The prior motion was procedurally defective because plaintiff filed an affirmation, instead of an affidavit, when he opposed the motion. Hon. Mora Decision & Order dated April 24, 2012, p. 3. The rule is that where an attorney is a party to the action, the attorney must file an affidavit, not an affirmation, in support of his papers. Specifically, the law provides that an attorney may only file an affirmation when he is NOT a party to an action,
“The statement of an attorney admitted to practice in the courts of the state ... authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit. ”
C.P.L.R. § 2106 ; See, Pisacreta v. Minniti et al, 265 A.D.2d 540 (2d Dept.1999) ; In re Sassower v. Greenspan, Kanarek, Jaffe & Funk, 121 A.D.2d 549 (2d Dept.1986). Notwithstanding, in filing the instant papers the plaintiff—an attorney proceeding pro se —filed yet another affirmation, instead of an affidavit, rendering the motion's supporting papers defective yet again. See Pisacreta supra; Sassower, supra. As such, the motion must be denied on these grounds.
B. Plaintiff's motion fails to set forth a reasonable excuse for the default and a meritorious defense.
In addition to the procedural defects, plaintiff's motion fails to set forth a reasonable excuse for the default and a meritorious defense.A motion to vacate a dismissal that was granted pursuant to 22 N.Y.C.R.R. § 210.14 is governed by C.P.L.R. § 5015(a). Bodden v. Penn–Attransco Corp., 20 AD3d 334 (1st Dept.2005) leave to appeal denied, 2005 N.Y.App. Div. Lexis 10756; Hodges v. Sidial, 48 AD3d 633 (2d Dept.2008) ; Jeganathan v. O'Reilly, 195 Misc.2d 197 (White Plains City Ct.2003). As such, while not identified as such, plaintiff's motion is made pursuant to C.P.L.R. § 5015(a).
Civil Practice Law and Rules § 5015(a)(1) provides that the court which rendered a judgment may relieve a party upon the ground of excusable default if a motion is made within one year after service of a copy of the judgment or order upon the moving party. While there exists a judicial preference for resolving disputes on the merits (see, Dodge v. Commander, 18 AD3d 943 [2005] ) motions to vacate default judgments are addressed to the trial court's sound discretion. See, Goldman v. Cotter, 10 AD3d 289 (1st Dept.2004). In order to restore a matter to the calendar that was previously dismissed, the plaintiff must demonstrate a reasonable excuse for the default and provide a meritorious cause of action. O'Loughlin v. Delisser, 15 AD3d 372 (2d Dept.2005) ; see also, Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138 (1986). What constitutes a “reasonable excuse” is generally left to the sound discretion of the court. Scott, et al v. B. Marie Ward, et al, 130 AD3d 903, 904 (2d Dept.2015).
This Court finds that the motion must be denied as procedurally defective, and that plaintiff has failed to sustain his burden of proof in establishing a reasonable excuse for his failure to appear. While continuing medical problems constitute a reasonable excuse for a delay in an action, there is no excuse for the utter lack of any communication to prevent dismissal—if indeed, plaintiff truly intended to prosecute the action. Instead, plaintiff not only failed to contact the court or defense counsel, but also engaged in dilatory tactics with defense counsel, i.e., failing to send a signed copy of the deposition back with his letter [Sears affirmation, dated December 2, 2015, ¶ 5], and never mentioned that he was suffering medical difficulties that might prevent him from timely attending to this litigation. Plaintiff made no contact with this Court or defense counsel by any means whatsoever. There was no telephone call, fax, email, letter, friend, or co-counsel, in seven months to seek an adjournment or to explain the difficulties that may be preventing plaintiff from timely attending to this matter. Had the Court or defense counsel been advised of plaintiff's situation, a reasonable adjournment would not only have been warranted, but it would have been granted. Instead, plaintiff seeks to have this Court excuse every bit of this.
This Court will not set a blanket standard where boundless time passes with zero communication and a matter is simply restored via motion on the grounds that a party has endured medical issues. There is no proof from a medical doctor establishing that plaintiff was incommunicado or utterly indisposed to attend to his personal affairs. In the absence of same, there is nothing that reasonably warrants this Court to conclude that such a sweeping hiatus should be held permissible in this Court or that a party should not be held accountable for his failure to prosecute an action or contact the Court to seek an adjournment for medical reasons.
Indeed, almost seven (7) months have passed since the dismissal was entered before plaintiff finally contacted this Court or defense counsel about his medical condition, and he has done so only by way of motion to vacate. Plaintiff's actions with respect to missing deadlines, delays, and lack of communication on this matter amount to dilatory tactics and inexcusable neglect which does not provide a reasonable excuse for his failure to appear. See, Ogunmoyin v. 1515 Broadway Fee Owner, LLC, et al, 85 AD3d 991 (2d Dept.2011) ; De Vito v. Marine Midland Bank, N.A., 100 A.D.2d 530 (2d Dept.1984).
Although the Court need not reach the issue of whether plaintiff has established a meritorious cause of action to restore the matter to the calendar [Scott, et al. v. B. Marie Ward, et al., 130 AD3d 903 (2d Dept.2015) ], it finds that plaintiff has failed to set forth any facts demonstrating a meritorious claim.
THEREFORE, based upon all of the foregoing, it is now
ORDERED that plaintiff's motion to vacate the dismissal and restore the matter to the calendar is DENIED.