Opinion
67077
02-21-2020
Earl PREGENT, Plaintiff, v. Carol PIOMBINO and Peter Shabat, Defendants.
Legal Aid Society of Northeastern New York, Inc., Saratoga Springs (Ethan Crofut of counsel), for plaintiff. Matte & Nenninger, P.C., Glens Falls (Christopher S. Nenninger of counsel), for defendant Carol Piombino.
Legal Aid Society of Northeastern New York, Inc., Saratoga Springs (Ethan Crofut of counsel), for plaintiff.
Matte & Nenninger, P.C., Glens Falls (Christopher S. Nenninger of counsel), for defendant Carol Piombino.
Robert J. Muller, J.
On or about September 2, 2015, plaintiff signed an agreement with Clifford Hansen to rent Cabin 8 at the Pinegrove Motor Inn (hereinafter the Pinegrove), located at 1897 State Route 9 in the Town of Lake George, Warren County. Although the agreement listed Hansen as "owner" of the property, the Pinegrove is in fact owned by defendant Peter Shabat (hereinafter Shabat) with Hansen serving as property manager. In accordance with the agreement, plaintiff paid a security deposit of $250.00 and rent in the amount of $575.00 per month.
Hansen passed away in April 2017 and his wife — defendant Carol Piombino (hereinafter defendant) — took over as property manager of the Pinegrove. In August 2017 plaintiff moved from Cabin 8 to Cabin 7 and, in September 2017, the roof of Cabin 7 "became severely compromised and began to leak significantly." Plaintiff notified defendant of the leak and she had a tarp placed over the roof, but she took no steps to repair the problem. In early 2018, the tarp failed and the roof again began to leak. According to plaintiff, "[d]ue to this leak[ ] the walls and wiring became damaged and dangerous, to the point that [he] was forced to shut off the power supply to the bathroom from early 2018 until March 21, 2019." He was further "forced to leave the power off through that entire period because of the risk of an electrical short or fire," and "[t]he bathroom wall was severely damaged[, causing] what [plaintiff] believed to be significant amounts of ... black mold behind the shower."
In addition to the leak in the roof, the heating in cabin 7 failed "in early winter of 2018, and [plaintiff had] to heat the cabin with a space heater." "There were [also] significant problems with [plaintiff's] septic system for the entirety of his tenancy, including but "not limited to pipes freezing and the cabin's septic system not being connected to the main septic system."
On February 1, 2019, plaintiff informed defendant that he was withholding rent until the roof of Cabin 7 was repaired. Plaintiff then received written notification on February 23, 2019 from defendant's daughter — Marjorie Bishop — that she was the new property manager for Pinegrove and his rent would be increasing from $575.00 to $625.00 per month, effective April 1, 2019. He thereafter received a 30-day notice to vacate the premises on February 26, 2019 as a result of his failure to pay rent and, on March 4, 2019, he was served with a notice of petition and petition in an eviction proceeding commenced by defendant and Bishop in Lake George Town Court. A hearing was scheduled in the proceeding for March 14, 2019, but plaintiff was unable to attend as a result of a medical appointment and a warrant of eviction and money judgment in the amount of $1,212.80 were issued against him. Plaintiff was served with a 72-hour notice of eviction on March 18, 2019 and vacated the premises on March 21, 2019. He then stayed at a Red Roof Inn for two nights and, since that time, has been homeless.
Meanwhile, plaintiff filed a complaint with the Office of Warren County Fire Prevention and Building Code Enforcement (hereinafter Building Code Enforcement) on March 18, 2019 relative to the living conditions in Cabin 7. Following an inspection, both Cabin 7 and Cabin 2 in the Pinegrove were declared unfit for human habitation by Building Code Enforcement and orders to vacate were issued. On June 19, 2019, Lake George Town Court vacated the money judgment issued against plaintiff and, on August 8, 2019, he commenced this action. Plaintiff alleges two causes of action: (1) breach of the warranty of habitability, for which he seeks reimbursement of all rent paid from September 2017 to February 2019 in the amount of $9,775.00 (see Real Property Law § 235-b ); and (2) conversion of his security deposit, for which he seeks treble damages in the amount of $1,000.00 (see General Obligations Law § 7-103 ; General Business Law § 349 [h] ). Plaintiff also seeks punitive damages. Issue has been joined with respect to Shabat — who served a pro se answer — but defendant failed to appear in a timely manner. Presently before the Court is plaintiff's motion for a default judgment against defendant in the amount of $10,775.00.
General Business Law § 349 (h) provides that "[t]he court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars." Here, three times the actual damages is $750.00 — not $1,000.00.
The motion was originally returnable on October 30, 2019. The Court, however, received correspondence from defendant on October 28, 2019 requesting a 30-day adjournment of the return date so she could retain counsel and appear in opposition to the motion. The correspondence indicated that counsel for plaintiff had been copied. On November 4, 2019, the Court sent correspondence granting this request and adjourning the return date to December 2, 2019. The Court subsequently received correspondence from counsel for plaintiff — Victoria M. Esposito, Esq. — on November 13, 2019 advising that neither she nor her co-counsel — Ethan Crofut, Esq. — were in fact copied on defendant's October 28, 2019 correspondence. She objected to the adjournment, contending that it severely prejudiced her client, who remains homeless. The Court then responded by correspondence dated November 21, 2019, stating as follows:
"While cognizant of your concerns relative to plaintiff's current living situation, the Court nonetheless declines to disturb the December 2, 2019 return date. Please be assured, however, that no further adjournments will be granted and the motion will be promptly decided following the return date."
Opposition to the motion was thereafter received, as was a reply in further support of the requested relief.
To succeed in demonstrating his entitlement to a default judgment, plaintiff must provide "proof of service of the summons and ... complaint, [together with] proof of the facts constituting the claim, the default and the amount due" ( CPLR 3215 [f] ). The Court finds that plaintiff has included the requisite proof.
That being said, to successfully oppose the motion, defendant must establish (1) a reasonable excuse for her default; and (2) the existence of a potentially meritorious defense (see McCue v. Trifera, LLC , 173 AD3d 1416, 1417-1418 [2019] ; Luderowski v. Sexton , 152 AD3d 918, 919 [2017] Aaron v. Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C. , 12 AD3d 753, 754 [2004] ).
The question of "[w]hether there is a reasonable excuse for [the] default is a discretionary determination and turns on a number of factors, including whether there has been willful neglect and prejudice to the opposing party, and ‘the strong public policy in favor of resolving cases on the merits’ " ( Matter of Santander Consumer USA, Inc. v. Kobi Auto Collision & Paint Center, Inc. , 166 AD3d 1365, 1365-1366 [2018], quoting Rickert v. Chestara , 56 AD3d 941, 942 [2008] [internal quotation marks and citation omitted]; see Aaron v. Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C. , 12 AD3d at 754 ).
Here, defendant was personally served with the summons and complaint on August 9, 2019 and, as such, had until August 29, 2019 to serve an answer (see CPLR 320 [a], 3012 [a] ). With that said, defendant contends that she failed to answer within the requisite time frame because, upon receiving the summons and complaint, she "spoke to ... Shabat[ ] who advised [her] he had ‘taken care of it’." According to defendant, she "mistakenly believed that ... he had taken care of the entirety of the lawsuit but now understand[s] that it was only resolved as against ... Shabat."
Aside from this statement by defendant, there is no indication that the action has been resolved as against Shabat — it merely appears that he served an answer.
The Court finds that defendant has established a reasonable excuse for her default. The instant motion was filed on October 8, 2019 — a little over one month after defendant's default — and defendant was then personally served with the motion on October 9, 2019. Presumably, this was the first time defendant learned that Shabat had not in fact dealt with the lawsuit on her behalf. She then contacted the Court prior to the return date to request an adjournment and, when the request was granted, she promptly obtained counsel and served opposition to the motion. Altogether, less than three months passed between the expiration of defendant's time to answer and the submission of her opposition papers. While plaintiff claims prejudice as a result of his continued homelessness, the Court finds that — given the fairly short delay — no prejudice has resulted. Furthermore, plaintiff makes no showing as to why he has been unable to secure alternative housing. Finally, the record is devoid of any evidence of bad faith or willful default (see Matter of Santander Consumer USA, Inc. v. Kobi Auto Collision & Paint Center, Inc. , 166 AD3d at 1366 ).
The Court notes that, because less than one year elapsed since defendant's default, plaintiff was not required to serve her with notice of the motion (see CPLR 3215 [g] [1] ).
Briefly, plaintiff contends that defendant is a sophisticated litigant who "has experience with the courts, routinely filing and conducting evictions" and, as such, her excuse is not reasonable. According to plaintiff, defendant was well aware of her obligation to answer the complaint and knew better than to take Shabat's word that he was answering on her behalf. The Court, however, finds this contention to be without merit. Eviction proceedings are not the same as actions filed in Supreme Court and, even if defendant was aware of her obligation to answer, she could certainly still believe that Shabat was arranging for the filing of an answer on her behalf.
Insofar as counsel for plaintiff provided the Court with a copy of Guariglia v. Price Chopper Operating Co., Inc. (13 AD3d 1028 [2004] ) (hereinafter Guariglia ) during oral argument — contending that it refutes defendant's claims of a reasonable excuse - such contention is without merit. The defendant in Guariglia was served with the summons and complaint on September 14, 1998 and, on April 1, 1999, his attorney sent correspondence to a co-defendant "express[ing] defendant's belief that [the co-defendant] was required to defend him in the lawsuit ..." ( id. at 1029 ). The co-defendant did not defend him, however, and he did not otherwise appear. As a result, plaintiff was granted a default judgment against him in July 1999 and defendant then moved to vacate the default judgment in November 2003, which motion was denied. On appeal, the Third Department affirmed the denial, stating as follows:
"With respect to reasonable excuse, defendant maintains that his default should be excused due to his mistaken reliance on the letter to [his co-defendant], as sufficient to protect his interests. Notably, aside from the letter, the record is completely devoid of any further steps by defendant that would establish diligence in properly appearing in this matter. Defendant's inaction evidences a serious lack of concerned attention to the progress of this action" (id. [internal quotation marks and citations omitted] ).
The facts in Guariglia are clearly distinguishable from the facts in this case. Most significantly, in Guariglia five years elapsed between the expiration of defendant's time to answer and the submission of his motion to vacate the default judgment. Here, however, defendant submitted opposition to plaintiff's motion for a default judgment less than three months after her time to answer expired. Indeed — unlike the defendant in Guariglia — she did not display a serious lack of concerned attention to the progress of the case.
Turning now to the second factor, "[t]o establish the existence of a potentially meritorious defense, a defendant [must] only ... ‘make a prima facie showing of legal merit’ " ( Luderowski v. Sexton , 152 AD3d at 920, quoting Passeri v. Tomlins , 141 AD3d 816, 819 [2016] [internal quotation marks and citations omitted]; see Puchner v. Nastke , 91 AD3d 1261, 1262 [2012] ). In other words, the " ‘the quantum of proof needed to prevail ... is less than that required when opposing a summary judgment motion’ " ( Luderowski v. Sexton , 152 AD3d at 920, quoting Abel v. Estate of Collins , 73 AD3d 1423, 1425 [2010] ; see Baptist Health Nursing & Rehabilitation Ctr., Inc. v. Baxter , 140 AD3d 1386, 1388 [2016] ; State of New York v. Bayramov , 98 AD3d 811, 812 [2012] ).
Here, defendant contends as follows in her affidavit:
"Plaintiff's case is predicated on many falsehoods. He initially was a tenant paying rent but when my husband passed away in April of 2017 I was very distraught and needed help with the hotel. I agreed with [p]laintiff that rent would be abated in exchange for him making repairs at the premises and acting as the premises superintendent.
"He did this for many months although he was not as competent as I had hoped. He constantly smoked marijuana and was disagreeable with other lodgers.
"He lived in [Cabin] 7 for many years and ... was supposed to make repairs and any problems he had in his own unit were the result of his failure to make repairs.
"He eventually refused to do any further repairs and refused to begin paying rent again. This resulted in the Lake George Town Court Eviction."
The Court finds that defendant has succeeded in establishing the existence of a potentially meritorious defense (see e.g. Ingargiola v. Waheguru Mgt. , 5 AD3d 732, 734 [2004], lv dismissed 3 NY3d 656 [2004] ). It is certainly possible that the parties reached a verbal agreement, as described by defendant. In this regard, the Court notes that plaintiff himself failed to submit an affidavit in reply to defendant's contentions. Rather, the reply was prepared by counsel for plaintiff, who has no personal knowledge of the events described (see Roemer v. Allstate Indem. Ins. Co. , 163 AD3d 1324, 1327 [2018] ; Hill v. Country Club Acres, Inc. , 134 AD3d 1267, 1268 [2015] ). Further, counsel for plaintiff contends in reply that "[p]laintiff attached copies of ... receipts [to the complaint] proving that he made [rental] payments until February 2018. " These receipts, however, are dated September 1, 2015 through April 1, 2017 — there are no receipts after that date. As such, they appear to support defendant's version of events. Plaintiff's inability to secure alternative housing also makes more senses if in fact he has not paid rent at the Pine Grove since April 2017.
It should be noted that, even if the parties did have a verbal agreement whereby plaintiff was to make repairs to the premises, this of course is not a complete defense to the action. Defendant — as lessor — still had an obligation to ensure that plaintiff's cabin was "fit for human habitation" (Real Property Law § 235-b [1] ), which obligation included, inter alia , purchasing supplies for plaintiff to perform repairs and arranging for the completion of repairs plaintiff could not perform.
Briefly, while defendant has attached a proposed answer to her opposition papers and requests an Order directing plaintiff to accept service of the same, she has not filed a cross motion. As a result, she is not entitled to this affirmative relief. That being said, defendant is hereby directed to file a motion for permission to serve a late answer within fifteen (15) days of the date of this Decision and Order (see CPLR 3012 [d] ).
Therefore, having considered the "Motion for Default Judgment Against Defendant Carol Piombino Pursuant to CPLR 3215" of Ethan Crofut, Esq. with exhibits attached thereto, dated October 8, 2019, submitted in support of the motion; Affidavit of Earl Pregent with exhibits attached thereto, sworn to August 8, 2019, submitted in support of the motion; Affidavit of Christopher S. Nenninger, Esq., sworn to November 26, 2019, submitted in opposition to the motion; Affidavit of Carol Piombino with exhibit attached thereto, sworn to November 26, 2019, submitted in opposition to the motion; and "Plaintiff's Reply to Defendant Piombino's Affidavit in Opposition" of Ethan Crofut, Esq., dated December 12, 2019, submitted in further support of the motion, and the Court having heard oral argument on February 5, 2020 with Victoria Esposito, Esq. and Ethan R. Crofut, Esq. appearing in support of the motion and Christopher S. Nenninger, Esq. appearing in opposition thereto, it is hereby
ORDERED the plaintiff's motion for a default judgment is denied in its entirety; and it is further
ORDERED that defendant Carol Piombino shall file a motion for permission to serve a late answer within fifteen (15) days of the date of this Decision and Order, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated October 8, 2019 and the above-referenced submissions. Counsel for defendant Carol Piombino is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the other parties in accordance with CPLR 5513.