Opinion
SCK 5994/2008-2.
Decided April 1, 2009.
Amy Johnson, Plaintiff pro se, Neal Zuckerman, Esq., Of counsel, Sonya M. Kaloyanides, Acting General Counsel, New York City Housing Authority, Attorneys for Defendant.
Upon the foregoing cited papers, defendant's motion to vacate the default judgment entered in this matter and to restore the matter to the trial calendar is decided as follows:
Plaintiff commenced the within Small Claims action seeking damages alleging "loss or damage to personal property." A summons was issued directing defendant to appear for a trial of the action on November 10, 2008.
By correspondence to the Court dated October 30, 2008, counsel for defendant requested an adjournment of the trial. The request was denied.
The matter proceeded to inquest on November 10, 2008 and the arbitrator who presided over the inquest awarded plaintiff the sum of $3000.00. Due to clerical error, a judgment was entered against the defendant but only in the amount of $300.00, not including interest and cost.
Plaintiff thereafter moved to amend the judgment pointing out the error. While an attorney appeared for the defendant to oppose plaintiff's motion, defendant did not cross-move at that time to vacate its default.
By order of Judge Peter P. Sweeney dated February 19, 2009, plaintiff's motion was granted and the judgment was amended to reflect the correct amount that plaintiff was awarded at the inquest. By order to show cause dated March 13, 2009, defendant moved to vacate the modified default judgment.
While it the strong public policy of the State of New York to resolve disputes on the merits ( 2M Realty Corp. v. Boehm , 13 AD3d 361 [2d Dep't. 2004] [ citations omitted]), a litigant seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) must nevertheless establish a reasonable excuse for the default and a meritorious defense to the action ( see CPLR 5015[a][1]; Westchester Medical Center v. Hartford Cas. Ins. Co. , 58 AD3d 832 [2d Dept 2009]). "[T]he determination of what constitutes a reasonable excuse generally [rests] within the sound discretion of the [Motion] Court" ( McHenry v. Miguel , 54 AD3d 912 , 913 [2d Dept 2008] [citations omitted]; see also Verde Elec. Corp. v. Federal Ins. Co. , 50 AD3d 672 [2d Dept 2008]).
Here, the defendant did not demonstrate that it had a reasonable excuse for its default on November 10, 2008. Defendant's counsel merely stated in his affirmation in support of its motion that defendant anticipated that the matter would be adjourned pursuant to its letter application. Indeed, no explanation was given as to why an attorney could not appear on November 10, 2008 ( see e.g. Armele v. Moose Intern., Inc., 302 AD2d 986 [4th Dept 2003]; see also Yurteri v. Artukmac , 28 AD3d 545, 546 [2d Dept 2006]).
Likewise, defendant did not establish a potentially meritorious defense. A defendant must establish a potentially meritorious defense by admissible proof ( Figueroa v. Luna, 281 AD2d 204, 205 [1st Dept 2001] [ citations omitted]; see also Thakurdyal v. 341 Scholes Street, LLC , 50 AD3d 889 [2d Dept 2008]; DeStaso v. Bottiglieri , 52 AD3d 453 , 454 [2d Dept 2008] [ citations omitted]). Here, in support of its contention that it has a meritorious defense to the action, defendant submitted only an attorney's affirmation. An attorney's affirmation, who lacks personal knowledge of the facts, lacks probative value, and is insufficient to support the vacatur of a default judgment ( Figueroa v. Luna, 281 AD2d at 205 [ citations omitted]).
Finally, a motion to vacate a default judgment should also be made as soon as reasonably practicable promptly after learning of the default ( Psychology YM, P.C. v. Hartford Acc. Indem. Co., 2008 NY Slip Op. 52208(U) [App Term, 2d 11th Jud Dists]; see also Robinson v. 1068 Flatbush Realty, Inc. , 10 AD3d 716 [2d Dept 2004]; see also Hoffman v. Sno Haus Ski Shops of Huntington, Inc., 185 AD2d 874 [2d Dept 1992]). Here, defendant knew that a default judgment had been entered in early December 2008 when plaintiff had moved for an order amending the judgment. Indeed, defendant's counsel appeared in opposition to the motion but never crossed-moved to vacate its default. It appears to this court that defendant was happy with the $326.00 judgment but unhappy with the modified judgment. Under these circumstance, the court finds that defendant did not expeditiously move to vacate its default.
Based on the above, it is hereby
ORDERED that defendant's motion to vacate the default judgment for the within action is DENIED.
The foregoing constitutes the decision and order of the court.