Opinion
17176 Index No. 651698/19 Case No. 2021–02738
01-24-2023
PARAMOUNT PAINTING GROUP, LLC, Plaintiff–Respondent, v. Mitchell NICHTBERGER et al., Defendants–Appellants, Nina Dawn Wallace, Defendant.
The Law Firm of Adam C. Weiss, PLLC, Glen Cove (Adam C. Weiss of counsel), for appellants. Duane Morris LLP, New York (Kevin J. Fee of counsel), for respondent.
The Law Firm of Adam C. Weiss, PLLC, Glen Cove (Adam C. Weiss of counsel), for appellants.
Duane Morris LLP, New York (Kevin J. Fee of counsel), for respondent.
Kapnick, J.P., Gonza´lez, Mendez, Shulman, Higgitt, JJ.
Appeal from order, Supreme Court, New York County (Melissa Anne Crane, J.), entered July 13, 2012, deemed an appeal as to liability only from judgment ( CPLR 5501[c] ), same court and Justice, entered November 21, 2022, in plaintiff's favor, and as so considered, the judgment, unanimously affirmed, with costs.
Supreme Court correctly granted plaintiff's motion for a default judgment, as defendants Mitchell Nichtberger and Paramount Painting N.Y. Inc. (PPNY) failed to proffer a meritorious defense to the action (see New Media Holding Co. LLC v. Kagalovsky, 97 A.D.3d 463, 465, 949 N.Y.S.2d 22 [1st Dept. 2012] ; Morrison Cohen LLP v. Fink, 81 A.D.3d 467, 468, 917 N.Y.S.2d 155 [1st Dept. 2011] ). Despite his contention otherwise, Nichtberger is not entitled to further limitations on the forfeiture of his salary, as there is no requirement under the faithless servant doctrine that an apportionment be performed so as to exclude those portions of salary where no disloyalty was found (see Matter of Blumenthal [Kingsford], 32 A.D.3d 767, 768, 822 N.Y.S.2d 27 [1st Dept. 2006], lv denied 7 N.Y.3d 718, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ). In any event, Nichtberger admitted that, between February 2012 and March 2019, while he was plaintiff's employee, he diverted nearly $1.5 million from plaintiff to a bank account in PPNY's name; in light of this admission of repeated disloyalty throughout his employment, there is no support for his contention that the forfeiture of his salary during the period of disloyalty should be further limited (see William Floyd Union Free School Dist. v. Wright, 61 A.D.3d 856, 857, 877 N.Y.S.2d 395 [2d Dept. 2009] ).
Since Nichtberger and PPNY failed to proffer a meritorious defense, we need not reach the issue of whether they proffered a reasonable excuse for their delay (see ICBC Broadcast Holdings–NY, Inc. v. Prime Time Adv., Inc., 26 A.D.3d 239, 240, 810 N.Y.S.2d 40 [1st Dept. 2006] ). Were we to reach the issue, we would find that their arguments are unpersuasive, given the two preliminary conference orders directing them to interpose an answer.