Chase Manhattan Bank v. Wolfman

• Citation: 429 N.Y.S.2d 836,104 Misc.2d 973
• Parties: The CHASE MANHATTAN BANK (National Association), Plaintiff, v. Calvin WOLFMAN, Defendant.
• Decision Date: 16 June 1980
• Court: New York City Court

Page 836

429 N.Y.S.2d 836

104 Misc.2d 973

The CHASE MANHATTAN BANK (National Association), Plaintiff, v. Calvin WOLFMAN, Defendant.

Civil Court of the City of New York, Bronx County.

June 16, 1980.

Julius Hirschfeld, Hempstead, for plaintiff.

Calvin Wolfman, pro se.

BENJAMIN F. NOLAN, Judge.

Plaintiff, Chase Manhattan Bank, brought this action against defendant, Calvin Wolfman, to recover $3,108.24, constituting the balance due on a Cash Reserve Checking Agreement plus attorney fees. The defendant answered, and the case was scheduled for a compulsory arbitration hearing on July 27, 1978. Defendant appeared on that date but no one appeared for plaintiff, whereupon the three arbitrators made an award dismissing the complaint pursuant to 22 NYCRR 28.11 of the rules of compulsory arbitration. That award was formally filed by the Commissioner of Arbitration and notice thereof served upon the parties on August 1, 1978. Now, some eighteen months later, plaintiff moves to vacate its default and have the action restored to the calendar.

After the default, plaintiff did not move to vacate the default but instead commenced suit on the same cause of action in Rockland County. However, in the new suit, he joined defendant's wife as a party defendant. (Chase Manhattan Bank v. Calvin Wolfman and Janice Wolfman, County Court, Rockland County, Index No. 7027/78). Both defendant and his wife reside in Rockland County. As time went on, plaintiff did nothing about the default award entered earlier in Bronx County. Eventually, the Rockland County Court called upon counsel for plaintiff to submit legal arguments to support its claim that it had a right to maintain the action in Rockland County in the face of its default in the Bronx County action. Apparently, plaintiff's response was not sufficient, because by Order of December 6, 1979, the Rockland County Court dismissed the action, saying: "Plaintiff has offered no reason for its failure to follow the court's direction. Additionally, plaintiff has offered no support for its collateral attack in this court on an outstanding judgment in Bronx County." Thereafter, plaintiff brought this motion to vacate its eighteen month default here in Bronx County Civil Court.

Now, on this motion, plaintiff's counsel makes the argument which it appears he should have made in Rockland County, contending that it was his understanding from thirty years practice of law that the dismissal for non-appearance at the arbitration hearing in Bronx County should not have precluded his institution of another action on the same cause in Rockland County. It appears clear that the Rockland County Court believed that the Bronx arbitration award was or had become a judgment. Yet, the procedure by which a judgment is entered in compulsory arbitration is set forth in the rules of the Administrative Board of the Judicial Conference, 22 NYCRR 28.7 and 28.11(b), and CPLR 3215 as made applicable to the New York City Civil Court by NYCCCA 1402. The record in this action reflects that no judgment was ever entered in this action based upon the compulsory arbitration award. Where, as herein, an award has been entered dismissing the complaint upon the failure of the plaintiff to appear before the panel of arbitrators for the duly scheduled hearing, "the case may be restored to the arbitration calendar only upon order of the court upon good cause shown. Such order of restoration shall provide that the moving party reimburse the court clerk the fees paid the arbitrators." (22 NYCRR 28.7(a)).

Whether or not the default herein ever ripened into a judgment may make little difference under the peculiar circumstances of this case in measuring whether good cause for restoration is shown, but, it is material on the issue whether plaintiff should have further pursued the Rockland County action by providing that court with the legal arguments it requested to support plaintiff's contention that its action in Rockland County did not constitute a collateral attack upon a judgment in Bronx County.

To establish good cause sufficient to justify vacatur of its default, plaintiff must show excusable default and a meritorious cause of action. (Wall v. Bennett, 33 A.D.2d 827, 305 N.Y.S.2d 728; Hurley v. Reoux, 29 A.D.2d 789, 287 N.Y.S.2d 163). The moving affirmation of counsel for plaintiff averred that his associate was unable to attend the arbitration hearing on July 27, 1978, because he had been hospitalized nine days earlier, as attested to by an attached medical certificate; and further, that his associate eventually resumed work, but he did not say when, nor was any affirmation submitted by his associate. He admitted that the date of the arbitration hearing was entered in his office diary and on his office calendar, but he did not explain why he did not take some action to prevent a default during the nine days between the time that his...