Allcare Homecare Agency v. Lokshin

• Decision Date: 02 December 2019
• Docket Number: Index No.: 512939/2019
• Citation: 2019 NY Slip Op 33768 (U)
• Parties: ALLCARE HOMECARE AGENCY, INC., Plaintiff(s), v. ELENA LOKSHIN, Defendant(s).
• Court: New York Supreme Court

2019 NY Slip Op 33768(U)

ALLCARE HOMECARE AGENCY, INC., Plaintiff(s), v. ELENA LOKSHIN, Defendant(s).

Index No.: 512939/2019

New York Supreme Court

FILED: December 24, 2019

RECEIVED: December 30, 2019

December 2, 2019

NYSCEF DOC. NO. 40

At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 2^nd day of DECEMBER, 2019.

PRESENT: HON. RICHARD VELASQUEZ Justice.

Decision and Order

MS #2

The following papers numbered 14 to 30 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause

Affidavits (Affirmations) Annexed

14-19

Opposing Affidavits (Affirmations)

30

After oral argument and a review of the submissions herein, the Court finds as follows:

Plaintiff ALLCARE HOMECARE AGENCY, INC., moves by Order to Show Cause for an order pursuant to CPLR 5015, 2221(e) and 2005 restoring the plaintiffs prior motion seeking a preliminary injunction. Plaintiff opposes the same.

ANALYSIS

First, the court shall address plaintiffs request to vacate the order and restore the Ordter to show cause to the caledar. Pursuant to CPLR 5015 (a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. "These categories represent a codification of the principal grounds upon which courts have traditionally vacated default judgments as part of their "inherent discretionary power" (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:11, at 476 [1992]). "It thus follows that section 5015 (a) does not provide an exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee" (see id.; 3d Preliminary Report of Advisory Comm on Practice and Procedure, 1959 NY Legis Doc No. 17, at 204), quoting Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68, 790 NE2d 1156 (2003). "In addition to the grounds set forth in section 5015 (a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (see Ladd v Stevenson, 112 NY 325, 332 [1889]; see generally 10 Weinstein-Korn-Miller, NY Civ Prac 5015.01, at 50-299; 5015.12, at 50-338 [2002]). As one commentator has noted, "It might have been more elegant to add an additional paragraph [to CPLR 5015 (a)] as a kind of catchall category, ... but the intent seems clear enough without it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:11, at 476-477), quoting Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 790 N.E.2d 1156 (Court of Appeals 2003).

Moreover, CPLR 2005 empowers the courts to exercise discretion in determining motions to vacate defaults emanating from law office failure. Among the factors to be considered are the meritorious nature of the defense, whether the neglect was excusable, lack of prejudice, brevity and non-deliberateness of the delay and a good faith intent to defend or prosecute the action (see Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917; Mineroff v. Macy's & Co., 97 A.D.2d 535, 467 N.Y.S.2d 895; Pettinato v. Sunscape At Bay Shore Home Owners Assn., 97 A.D.2d 434, 467 N.Y.S.2d 628) quoting Stolpiec v. Wiener, 100 A.D.2d 931, 932, 474 N.Y.S.2d 820, 821 (1984).. "The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court" (see Morales v. Perfect Dental, P.C., 73 A.D.3d 877, 878, 899 N.Y.S.2d 883), and in exercising that discretion, the court may accept law office failure as an excuse (see CPLR 2005; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357). However, law office failure should not be excused where " 'a default results not from an isolated, inadvertent mistake, but from repeated neglect' " (Gutman v. A to Z Holding Corp., 91 A.D.3d 718, 719, 936 N.Y.S.2d 316, quoting Chery v. Anthony, 156 A.D.2d 414, 417, 548 N.Y.S.2d 535), or where allegations of law office failure are vague, conclusory, and unsubstantiated (see Cantor v. Flores, 94 A.D.3d 936, 936-937, 943 N.Y.S.2d 138; see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 904, 866 N.Y.S.2d 357); quoting Glukhman v. Bay 49th St. Condo., LLC, 100 A.D.3d 594, 595, 953 N.Y.S.2d 304, 305 (2012).

In the present case, the plaintiff has demonstrated a reasonable excuse of law office failure for the default...