Opinion
No. 2022-02159 Index No. 504032/18
05-22-2024
Paul Szklarz, respondent, v. Samuel Racer, appellant.
Samuel Racer, Brooklyn, NY, appellant pro se.
Samuel Racer, Brooklyn, NY, appellant pro se.
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER HELEN VOUTSINAS LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover on a promissory note, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated January 3, 2022. The order, in effect, denied that branch of the defendant's motion which was, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated December 11, 2018, granting the plaintiff's motion for summary judgment on the complaint upon the defendant's failure to appear for oral argument.
ORDERED that the order dated January 3, 2022, is reversed, on the law and the facts, without costs or disbursements, and that branch of the defendant's motion which was, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated December 11, 2018, is granted.
The plaintiff commenced this action against the defendant to recover on a promissory note. The plaintiff moved for summary judgment on the complaint in the amount of $10,000, plus costs and interest. The defendant, a retired attorney who appeared in the action pro se, opposed the plaintiff's motion. In an order dated December 11, 2018, upon the defendant's failure to appear for oral argument, the Supreme Court granted the plaintiff's motion. The defendant moved, inter alia, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated December 11, 2018. In an order dated January 3, 2022, the court denied the defendant's motion. The defendant appeals.
To vacate his default in appearing for oral argument, the defendant was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the plaintiff's motion (see id. § 5015[a][1]; Rudsky v Schechtman, 219 A.D.3d 1453, 1454). "Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse" (HSBC Bank USA, N.A. v Hutchinson, 215 A.D.3d 645, 646; see CPLR 2005). Ill. health of a litigant's attorney is an acceptable excuse for a default (see Moore v Moore, 216 A.D.3d 938, 939; Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 A.D.3d 509, 510).
Here, the defendant demonstrated a reasonable excuse for his failure to appear (see Zeltser v Sacerdote, 24 A.D.3d 541, 542). The defendant's affidavit set forth that, on the date the motion was scheduled for oral argument, the defendant failed to appear in court due to a personal health emergency, which was corroborated by his dentist's affirmation. The defendant's failure to give notice to the Supreme Court or the plaintiff's counsel, while discourteous, amounts to law office failure, which does not preclude excusing a default (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 293 A.D.2d 324, 325). Moreover, although the court noted that this was not the first time the defendant had defaulted in the matter, the court had previously determined, in effect, that the defendant established a reasonable excuse for his previous default. Thus, the default at issue was not part of a pattern of neglect and should be excused as law office failure.
Moreover, the defendant demonstrated a potentially meritorious defense to the plaintiff's motion for summary judgment. "[A] plaintiff establishes its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it show[s] the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms" (Yong Lee v Nextcom Constr., Inc., 219 A.D.3d 937, 937 [internal quotation marks omitted]; see Porat v Rybina, 177 A.D.3d 632, 632). "Once a plaintiff has established its prima facie entitlement to judgment as a matter of law, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense" (Yong Lee v Nextcom Constr., Inc., 219 A.D.3d at 937-938 [internal quotation marks omitted]; see Porat v Rybina, 177 A.D.3d at 632).
"When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment" (Hong v Renval Constr., LLC, 219 A.D.3d 593, 594 [internal quotation marks omitted]; see Shadlich v Rongrant Assoc., LLC, 66 A.D.3d 759, 760). "A contract is ambiguous if the terms are susceptible to more than one reasonable interpretation" (Hong v Renval Constr., LLC, 219 A.D.3d at 594 [internal quotation marks omitted]; see Archstone v Tocci Bldg. Corp. of N.J., Inc., 101 A.D.3d 1062, 1064). Here, an ambiguity exists as to the sum due on the note. In light of the ambiguity, the defendant demonstrated a potentially meritorious defense to the plaintiff's motion for summary judgment (see Hong v Renval Constr., LLC, 219 A.D.3d at 594-595; Nappy v Nappy, 40 A.D.3d 825, 826-827).
The defendant's remaining contentions are without merit.
Under these circumstances, the Supreme Court should have granted that branch of the defendant's motion which was, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated December 11, 2018, granting the plaintiff's motion for summary judgment on the complaint upon the defendant's failure to appear for oral argument.
DUFFY, J.P., MILLER, VOUTSINAS and LOVE, JJ., concur.