Opinion
2020–09745 Index No. 9009/10
10-05-2022
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Innocent JOSEPH, appellant, et al., defendants.
Petroff Amshen, LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Gross Polowy, LLC (Reed Smith, LLP, New York, NY [Kerren B. Zinner and Andrew B. Messite ], of counsel), for respondent.
Petroff Amshen, LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.
Gross Polowy, LLC (Reed Smith, LLP, New York, NY [Kerren B. Zinner and Andrew B. Messite ], of counsel), for respondent.
COLLEEN D. DUFFY, J.P., BETSY BARROS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Innocent Joseph appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 2, 2020. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated March 21, 2017, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference.
ORDERED that the order dated March 2, 2020, is affirmed insofar as appealed from, with costs.
In April 2010, the plaintiff commenced this action against, among others, the defendant Innocent Joseph (hereinafter the defendant) to foreclose a mortgage encumbering certain real property in Brooklyn. The defendant retained counsel and answered the complaint. Thereafter, in September 2014, after having participated in several settlement conferences, the defendant retained new counsel. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, the appointment of a referee to determine the amount due, and for an order of reference. The defendant did not oppose the motion and thereafter did not appear at the inquest on damages held in March 2017. Thereafter, by order dated March 21, 2017 (hereinafter the March 2017 order), the Supreme Court granted the plaintiff's unopposed motion.
In September 2019, the defendant moved, among other things, pursuant to CPLR 5015(a)(1) to vacate the March 2017 order, citing law, inter alia, office failure as a reasonable excuse for the default. The defendant contended that his former counsel had been disbarred from the practice of law in August 2018 (see Matter of Pelsinger, 164 A.D.3d 189, 82 N.Y.S.3d 607 ), and that counsel failed to properly represent him in the action as evidenced by counsel's failure to oppose the plaintiff's motion, inter alia, for summary judgment and to appear on behalf of the defendant at the inquest. In an order dated March 2, 2020, the Supreme Court, inter alia, denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate the March 2017 order. The defendant appeals.
In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see U.S. Bank N.A. v. 1009 Guyiti, LLC, 186 A.D.3d 1562, 1563, 131 N.Y.S.3d 73 ; Vizelter v. Strogov, 170 A.D.3d 917, 918, 96 N.Y.S.3d 97 ). Although law office failure may constitute a reasonable excuse for a default (see CPLR 2005 ), such an excuse must be supported by a detailed and credible explanation for the law office failure alleged to have caused the default (see Campbell v. TPK Heating, Ltd., 181 A.D.3d 642, 642, 117 N.Y.S.3d 875 ; Seaman v. New York Univ., 175 A.D.3d 1578, 1579, 109 N.Y.S.3d 150 ). Mere neglect is not a reasonable excuse (see Campbell v. TPK Heating, Ltd., 181 A.D.3d at 643, 117 N.Y.S.3d 875 ; Seaman v. New York Univ., 175 A.D.3d at 1579, 109 N.Y.S.3d 150 ), and where there is a pattern of default and neglect, the attorney's neglect can be imputed to the client (see New York Vein Center, LLC v. Dovlaryan, 162 A.D.3d 1056, 1058, 80 N.Y.S.3d 132 ).
Here, although the defendant's former counsel was disbarred, the defendant did not contend that the disbarment arose as a result of counsel's failure to communicate with clients or neglect of client matters (see e.g. Perez v. Table Run Estates, Inc., 191 A.D.3d 416, 416, 137 N.Y.S.3d 683 ; Matter of Pelsinger, 164 A.D.3d 189, 82 N.Y.S.3d 607 ). The fact of a disbarment alone does not satisfy the defendant's duty to provide a detailed and credible explanation for the law office failure that he claims caused his default in opposing the plaintiff's motion (see e.g. Perez v. Table Run Estates, Inc., 191 A.D.3d at 416, 137 N.Y.S.3d 683 ; Vizelter v. Strogov, 170 A.D.3d at 918–919, 96 N.Y.S.3d 97 ). The defendant also failed to offer any reasonable explanation for his failure to apprise himself about the status of the action or inquire with his former counsel about the status of the action for multiple years (see Campbell v. TPK Heating, Ltd, 181 A.D.3d at 643, 117 N.Y.S.3d 875 ; Vizelter v. Strogov, 170 A.D.3d at 918–919, 96 N.Y.S.3d 97 ). The defendant's former counsel was not disbarred until after the inquest at which the defendant failed to appear. Under these circumstances, a "history of repeated neglect" on the part of the defendant's prior counsel resulting in the default is imputed to the defendant ( Vizelter v. Strogov, 170 A.D.3d at 919, 96 N.Y.S.3d 97 ; see New York Vein Ctr., LLC v. Dovlaryan, 162 A.D.3d at 1058, 80 N.Y.S.3d 132 ). Since the defendant failed to demonstrate a reasonable excuse for his default, this Court need not consider whether the defendant demonstrated the existence of a potentially meritorious opposition to the plaintiff's motion (see Vizelter v. Strogov, 170 A.D.3d at 919, 96 N.Y.S.3d 97 ).
DUFFY, J.P., BARROS, MILLER and CHRISTOPHER, JJ., concur.