Opinion
2021-50574
06-17-2021
Richard Murphy, Respondent, v. The Coalition of Landlords, Homeowners & Merchants and Paul Palmieri, Appellants.
Judith N. Berger, for appellants. Richard Murphy, respondent pro se (no brief filed).
Unpublished Opinion
Judith N. Berger, for appellants.
Richard Murphy, respondent pro se (no brief filed).
PRESENT: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 10, 2020. The order denied defendants' motion to vacate a judgment entered upon their failure to appear for arbitration.
ORDERED that the order is affirmed, without costs.
Plaintiff retained defendant The Coalition of Landlords, Homeowners & Merchants, of which defendant Paul Palmieri is the president, to represent him in connection with issues relating to real property. In this small claims action, plaintiff seeks a refund of $2,870. The matter was set down for mandatory arbitration (see Rules of Chief Judge [22 NYCRR] § 28.2). At the request of defense counsel, Judith Berger, and upon her representation that defendants intended to move to consolidate this action with a separate action that they would be bringing against plaintiff herein in the Supreme Court, Suffolk County, the arbitration of the action was adjourned twice: first, from May 17, 2018 to July 5, 2018, and then to August 30, 2018. On the afternoon of August 29, 2018, defense counsel faxed an affirmation of actual engagement to the clerk of the District Court, in which she stated that she was to appear on August 30, 2018 in the Supreme Court, Suffolk County, in a separate matter. Berger also repeated her intention to move to consolidate this action with a related matter in the Supreme Court, Suffolk County, and requested an additional 60-day adjournment. On August 30, 2018, upon defendants' failure to appear, an arbitrator took testimony from plaintiff and awarded plaintiff the principal sum of $2,870. An arbitrator's case report dated August 30, 2018 was filed in the District Court's clerk's office on September 5, 2018. On October 24, 2018, defendants filed an order to show cause in the District Court seeking, among other things, to vacate the arbitrator's award and to prevent a judgment from being entered thereon. The District Court declined to sign the order to show cause, and, on October 30, 2018, a judgment was entered against defendants in the principal sum of $2,870.
On October 25, 2019, defendants moved, pursuant to CPLR 5015 (a) (1), to vacate the default judgment and to restore the case to the court's calendar. In a supporting attorney's affirmation, Berger claimed, in part, that defendants had a reasonable excuse for their default because, on the hearing date, she had been actually engaged at a conference in the Supreme Court, Suffolk County, where the presence of counsel had been required. Defendants based their request for relief on the same affirmation of actual engagement as they had previously relied on. Plaintiff opposed defendants' motion, which the District Court denied on bases including defendants' failure to demonstrate a reasonable excuse for their default as required by CPLR 5015 (a) (1).
Because this matter was arbitrated pursuant to the Rules of the Chief Judge (22 NYCRR) part 28, the judgment, the default, and the award were subject to vacatur "upon good cause shown" (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 A.D.2d 426 [1989]; Rosman & Co. v Chideckel, 44 Misc.3d 137 [A], 2014 NY Slip Op 51248[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; Williams v Rastegar, 38 Misc.3d 126[A], 2012 NY Slip Op 52319[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). In our view, defendants' submissions were inadequate to demonstrate "good cause" for defendants' default (see Juniper Walk Condominium v Patriot Mgt. Corp., 3 Misc.3d 748, 752 [White Plains City Ct 2004]). The motion papers demonstrated that defense counsel had waited until the eve of the arbitration hearing to fax an affirmation of actual engagement to the District Court (see People v Colasanto, 70 Misc.3d 133 [A], 2020 NY Slip Op 51570[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]), which affirmation had failed to comply in a number of particulars with the Rules of the Chief Administrator of the Courts (22 NYCRR) § 125.1 (see Wahid v Pour, 89 A.D.3d 1015 [2011]). Moreover, defense counsel should have been aware of the scheduling conflict at the time that she requested the second adjournment and consented to the second adjourned hearing date. Nevertheless, defendants made the instant motion 14 months after the arbitrator's award and nearly a year after the entry of judgment.
We do not consider any materials which are dehors the record (see Chimarios v Duhl, 152 A.D.2d 508 [1989]).
Accordingly, the order is affirmed.
RUDERMAN, P.J., GARGUILO and DRISCOLL, JJ., concur.