Bowery Poetry Club, Inc. v. Lemoine

• Decision Date: 23 March 2022
• Docket Number: Index 651043/2012
• Citation: 2022 NY Slip Op 30965 (U)
• Parties: BOWERY POETRY CLUB, INC., Plaintiff, v. RAY LEMOINE, MICHAEL HERMAN Defendant. Motion Seq. No. 002
• Court: New York Supreme Court

2022 NY Slip Op 30965(U)

BOWERY POETRY CLUB, INC., Plaintiff,
v.
RAY LEMOINE, MICHAEL HERMAN Defendant.

Motion Seq. No. 002

Index No. 651043/2012

Supreme Court, New York County

March 23, 2022

Unpublished Opinion

MOTION DATE 3/21/2022

DECISION+ ORDER ON MOTION

HON. SABRINA KRAUS, Justice

The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff commenced this action pursuant to a summons and complaint filed on April 2, 2012. Plaintiff was the lessee of the ground floor and cellar of 308 Bowery, New York, New York, 10012 (Subject Premises) pursuant to a lease agreement dated December 1, 2009 between plaintiff and 308-310 Bowery, LLC.

On or about December 10, 2010, plaintiff subleased a portion of the Subject Premises to Harrisons Bowery (HB) for a term for January 1, 2011 through February 29, 2016. Defendants in this action were the guarantors for said sublease.

Plaintiff alleges HB fell behind in the payment of rent and additional rent. Plaintiff further alleges that it entered into a surrender agreement with HB terminating the sublease and waiving the payments due on condition that HB vacated the Subject Premises on or before August 22, 2011. Plaintiff alleges that HB failed to vacate by said date, and they commenced a holdover proceeding to take back possession of the Subject Premises Under Index No. L&T

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85292/11. Plaintiff alleges they obtained a judgment of possession in that proceeding in addition to a money judgment in the amount of $74, 171.54 for rent and additional rent due. Plaintiff alleges a warrant of eviction issued on February 2, 2012 and was subsequently executed by a City Marshal.

Defendants failed to answer or appear in this action and on August 27, 2012, plaintiff moved for a default judgment. The motion was granted by the Court (Freed, J) pursuant to a decision and order dated November 19, 2012, which granted the default and set the matter down for an inquest on damages. On January 16, 2013, the court awarded plaintiff a judgment in the amount of $88, 902.00. Plaintiff served and filed notice of entry of said judgment on February 4, 2013.

In March 2021, plaintiff served Michael Herman's (Herman) bank with an information and restraint subpoena. On March 17, 2021, an attorney reached out to plaintiffs counsel on behalf of Herman as regards the account. Based on discussions between counsel it was agreed that any funds in the account in excess of the $152, 678.86 needed to satisfy the judgment could be released.^[1]

THE PENDING MOTION

On February 22, 2022, Herman appeared herein by counsel and submitted an order to show cause seeking to vacate the default judgment. The order to show cause was signed by the court and returnable on March 21, 2022. Plaintiff filed opposition and after oral argument, the court reserved decision.

For the reasons stated below, the motion is granted to the extent of vacating the default judgment as against Herman and granting Herman leave to serve and file an answer.

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DISCUSSION

The Motion Pursuant to CPLR 5015(a)(1) is Untimely But Movant Does Provide An Excusable Default

Herman moves by order to show cause pursuant to CPLR §5015 and seeks an order:

(i) opening and vacating Michael Herman's default judgment upon the grounds of lack of personal jurisdiction and excusable default

(ii) lifting all restraints and executions against Michael Herman

(iii) staying all judgment enforcement action against Michael Herman pending the determination of this application;

(iv) granting leave for defendant Michael Herman to serve and file a reply to respond to plaintiffs affidavit of service, which plaintiff is required to produce with its responsive papers pursuant to CPLR § 3211(e);

(v) directing restitution for all monies paid toward the judgment thus far by Michael Herman through garnishment, plus interest and fees; and

(vi) for such other and further relief as may be just, proper, and equitable.

The order to show cause does not specify which provision of 5015 relief is sought pursuant to. The order to show cause neither seeks dismissal of the action,...