Opinion
Index No. 506589/2018 Mot. Seq. Nos. 5 6 7
07-07-2023
OSBOURNE WALKER, Plaintiff, v. MICHELE SIMMSPARRIS, AMY MALDONADO, ESQ., SIMMSPARRIS MALDONADO TEHAUNO, LLP, KWESI SIMMSPARRIS, KASPIAN FINANCIAL INC., MICHAEL B. CHEATHAM, ESQ., JOHN DOE, JANE DOE, and ABC CORP., Defendants.
Unpublished Opinion
Motion Date: 6/29/2022.
DECISION & ORDER
RICHARD J. MONTELIONE, J.
The following papers were read on this motion pursuant to CPLR 2219(a):
Papers
NYSCEF DOC.#
Plaintiffs Motion dated October 14, 2020 pursuant to CPLR § 3215 for leave to enter a judgment upon default against Defendants MICHELE SIMMSPARRIS, SIMMSPARRIS MALDONADO TEHAUNO, LLP, KWESI SIMMSPARRIS and KASPIAN FINANCIAL INC.; Attorney Affirmation of Christopher Tucker, Esq., affirmed on October 14, 2020; Affidavit of Osbourne Walker, sworn to on October 13, 2020; Exhibits A-F.......................................................................... (MS#5)
88-97, 108-112
Defendants Michele M. Simms Parris and Kwesi A. Simms Parris' Motion to Reargue dated November 19, 2020 confirming the referee's report, 22 NYCRR 202.44 and to dismiss the plaintiffs complaint, CPLR 3212 for summary judgment, sanctions under 22 NYCRR § 130.1(a); Affidavit of Michele M. Simmsparris, sworn to on November 19, 2020; Exhibits A-C (Other exhibits are untabed but labeled through Exhibit "z"... (MS#6)
DOCS. NOT EFILED
Plaintiffs attorney affirmation of Christopher Tucker, Esq., affirmed on April 5, 2021 in opposition to Defendants' motion to reargue; Attorney Affirmation of Christopher Tucker, Esq., affirmed on June 4, 2021 in further support of opposition to defendants' motion to reargue............................................................................. (MS#6)
100-103, 107
Defendants Michele M. Simms Parris and Kwesi A. Simms Parris' Cross-Motion dated February 4, 2021 pursuant to CPLR 317 and CPLR 2004; Affidavit of Michele M. Simmsparris, sworn to on February 4, 2021; Affidavit of Kwesi A. Simmsparris, sworn to on February 4, 2021; Exhibits A-G............................................... (MS#7)
DOCS. NOT EFILED
This is an action, inter alia, for legal malpractice regarding the alleged failure of defendants Michele Simmsparris and Kwesi Simmsparris ("moving defendants" or "defendants") to answer a complaint on behalf of the plaintiff in an unrelated matter and to take other actions to protect the interest of the plaintiff which was commenced by filing the summons and complaint on April 2, 2018. The Plaintiff previously moved for default judgment against defendants, Michele Simmsparris and Kwesi Simmsparris, by motion filed on June 25, 2018, but this motion was held in abeyance pending the determination of the traverse hearing. The court referred the issue of proper service to a Referee for a traverse hearing by order dated December 6, 2018 regarding defendants Michele Simmsparris and Kwesi Simmsparris. The Referee by decision dated July 9, 2019 recommended that the traverse be overruled as proper service was effectuated upon the defendants Michele Simmsparris and Kwesi Simmsparris. The Notice of Entry of the Referee's decision was served by "Notice of Entry" on July 16, 2019 (the Referee's Report is not a court order and therefore a Notice of Entry was unnecessary).
The court granted plaintiffs motion to confirm the referee's report finding that proper service was effected upon the defendants Michele Simmsparris and Kwesi Simmsparris but denied default judgment without prejudice as the plaintiff lacked an affidavit of merit or a complaint that was verified by someone with personal knowledge as required under CP1R 3215(f) (see also Hazim v Winter, 234 A.D.2d 422, 650 N.Y.S.2d 149 (2nd Dept 1996]).
Plaintiff now moves to enter a default judgment against the defendants Michele Simmsparris and Kwesi Simmsparris and these defendants cross move to reargue the court's prior order confirming the Referee's Report and to vacate their default pursuant to CPLR 317.
The Defendants Motion to Reargue
The well-known standard for considering a motion to reargue is found in WBXB, LLC v Rosswaag, 2023 NY Slip Op 02708, 2023 WL 3486607, at 2 [2d Dept May 17, 2023]:
A motion for leave to reargue 'shall be identified specifically as such' and 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion' (CPLR 2221 [d][1 ],[2]).
The defendants fail to show matters of fact or law allegedly overlooked or misapprehended by the court. Defendants raise for the first time in their motion to reargue the Referee's alleged non-compliance with CPLR. 4320(b) and/or 22 NYCRR § 202.44 regarding the filing of the exhibits along with the report. CPLR 4320(b) reflects, "(b) Report; transcript. The referee shall file his report, setting forth findings of fact and conclusions of law, within thirty days after the cause or matter is finally submitted. Unless otherwise stipulated, a transcript of the testimony together with the exhibits or copies thereof shall be filed with the report." 22 NYCRR § 202.44 reflects in pertinent party, "(a) When a judicial hearing officer or referee appointed to hear and report has duly filed his or her report, together with the transcript of testimony taken and all papers and exhibits before him or her in the proceedings, if any... plaintiff shall move on notice to confirm or reject all or part of the report within 15 days..." The exhibits marked into evidence were forwarded to the prior justice who originally directed the Traverse Hearing. The below Justice obtained those exhibits which shall either be uploaded to the NYSCEF system and/or filed with the County Clerk. If this objection was raised by defendants in the prior motion, the court would have insured the uploading of these records into NYSCEF or directed they be filed with the County Clerk. These exhibits do not change the results of the court's prior decision and order.
All other issues have all been addressed in the court's prior order. Defendants now move to vacate their default under CPLR 317 and extend their time to answer under CPLR 2004. However, defendants fail to inform the court as to when they received notice of the summons and complaint which would show that they did not have adequate time in which to defend the action and this failure is fatal to their application to vacate their judgment under CPLR 317. See 259 Milford, LLC v FV-1, Inc., 211 A.D.3d 658, 661, 179 N.Y.S.3d 707, 710, 2022 NY Slip Op 06898,2, 2022 WL 17480676 [2d Dept 2022]:
.. .the affiant did not set forth the date that the defendant learned of the action, and thus did not show that the defendant lacked notice of the action in time to defend the action (see CPLR 317). Under these circumstances, the defendant failed to show that it lacked notice of the action in time to defend the action (see HSBC Bank USA, N.A. v. Cherestal, 178 A.D.3d at 682, 113 N.Y.S.3d 206; Taron Partners, LLC v. McCormick, 173 A.D.3d at 930, 103 N.Y.S.3d 485; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 725-726, 32 N.Y.S.3d 198). As the defendant did not set forth its lack of notice of the action, it was not entitled to relief pursuant to CPLR 317, irrespective of whether it set forth a potentially meritorious defense to the action (see Beltran v. New York City Hous. Auth., 206 A.D.3d at 874-875, 171 N.Y.S.3d 127; Barnett v. Diamond Fin. Co., Inc., 202 A.D.3d 651, 652-653, 163 N.Y.S.3d 146; Progressive Cas. Ins. Co. v. Excel Prods., Inc., 171 A.D.3d 812, 814, 98 N.Y.S.3d 87).
The moving defendants further argue that the complaint does not contain viable causes of action, ie. "unauthorized practice of law." Inasmuch as the issue of a viable cause of action may be raised at any point, defendants reserve their right to raise the viability of any particular cause of action at the damages phase of the proceedings. See Fried v Jacob Holding, Inc., 110 A.D.3d 56, 59-60 [2d Dept 2013]):
To demonstrate 'the facts constituting the claim' the movant need only submit sufficient proof to enable a court to determine that 'a viable cause of action exists' (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]; see Alterbaum v Shubert Org, Inc., 80 A.D.3d 635, 636 [2011]; Neuman v Zurich N. Am., 36 A.D.3d 601, 602 [2007]).
Based on the foregoing, it is
ORDERED that the plaintiffs motion for default judgment is GRANTED (MS#5), damages shall be assessed during the damages phase of the trial and the moving defendants reserve their rights to raise the viability of any particular cause of action at the time of the damages phase of the trial; and it is further
ORDERED that the moving defendants' motion to reargue is DENIED (MS#6); and it is further
ORDERED that the moving defendants' motion to vacate their default under CPLR 317 and CPLR 2004 is DENIED; and it is further
ORDERED that all other requests for relief are denied. This constitutes the decision and order of the Court. TlomXjchard J. Montelione