Debattista v. Taylor Grp. Gen. Contracting, Inc.
| Citation | 2017 NY Slip Op 32278 (U) |
| Decision Date | 18 October 2017 |
| Docket Number | INDEX NO. 161424/2015 |
| Parties | LOUIS DEBATTISTA d/b/a IL MALTI, Plaintiffs, v. TAYLOR GROUP GENERAL CONTRACTING, INC., and NORRIS TAYLOR, Defendants. |
| Court | United States State Supreme Court (New York) |
MOTION DATE
MOTION CAL. NO.
On November 15, 2015, plaintiff Louis Debattista d/b/a Il Malti ("Plaintiff") commenced this action against the defendants Taylor Group General Contracting, Inc. ("Taylor Group"), and Norris Taylor ("Mr. Taylor") (collectively, "Defendants") for failure to pay Plaintiff the balance due under the parties' contract. Defendants were served on November 17, 2015, and November 19, 2015. According to Plaintiff's counsel, on or about December 15, 2015, Defendants' counsel spoke with Plaintiff's counsel and the two agreed to extend Defendants' time to respond to the Complaint to January 5, 2016. Defendants thereafter failed to move, answer, appear or raise an objection to the Complaint.
On March 7, 2016, Plaintiff moved for default judgment against Defendants. Plaintiff's motion was granted without opposition on May 4, 2016.
In Plaintiff's supporting affidavit sworn to on March 7, 2016, Debattista stated that on April 10, 2009, he entered into a contract of sale with Defendants whereby he agreed to sell certain assets of his construction company, Il-Malti, to Defendants for an agreed upon sum of $100,000.00 ("the Purchase Price"). The assets being sold included the client list, tools, 1989 Ford Branco, list of subcontractors, designer and architect contracts, and three employees. Debattista stated that as required under the contract, he credited Defendants $12,765.00 against the Purchase Price for work that Defendants previously performed for his business and transferred the corporate assets to Defendants. While Defendants paid him a total sum of $28,500.00 against the balance due, Debattista stated that Defendants had failed to pay the balance due and owing in the amount of $58,735.00 per the terms of the Contract.
Judgment was entered on August 10, 2016, and a copy of the Judgment was served on Defendants on the same date.
By Notice of Motion filed on December 28, 2016, Defendants move for an order vacating the default judgment and permitting the late filing of answering papers. Defendants submit the affidavit of Mr. Taylor and the attorney affirmation of Mahmoud Ramadan. Plaintiff opposes, and Mr. Debattista submits an affidavit, along with the attorney affirmation of Anna K. Mitchell. In reply, Mr. Taylor submits an affidavit, along with a proposed order.
Discussion
Pursuant to CPLR § 5015, the court which rendered a judgment or order may, on motion, grant relief from the judgment or order upon the ground of "excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry." CPLR § 5015(a)(1). In order to prevail on a motion to vacate a default judgment upon the ground of excusable default under CPLR § 5015(a)(1), the moving party must satisfy the burden of showing a "meritorious claim or defense" and "a reasonable excuse for the default." Sheikh v. New York City Transit Auth., 258 A.D.2d 347, 348 (1st Dep't 1999); Pena v. Mittleman, 179 A.D.2d 607, 609 (1st Dep't 1992); Mutual Marine Office, Inc. v. Joy Const., 39 A.D.3d 417 (1st Dep't 2007).
Reasonable Excuse
The determination of what constitutes a reasonable excuse for a default lies within the motion court's discretion. (Orimex Trading, Inc. v. Berman, 168 A.D.2d 263 [1st Dept 1990]). "The determination whether a reasonable excuse has been offered is sui generis and should be based on all relevant factors, among which are the length of the delay chargeable to the movant, whether the opposing party has been prejudiced, whether the default was willful, and the strong public policyfavoring the resolution of cases on the merits." (Chevalier v. 368 E. 148th Street Associates, LLC, 80 A.D.3d 411 [1st Dept 2011] [citations omitted]).
Pursuant to CPLR 2005, upon an application satisfying the requirements of CPLR 5015(a), "the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure." A claim of law office failure may be accepted as a reasonable excuse where the claim is supported by a "detailed and credible" explanation of the default at issue. (Henry v. Kuveke, 9 A.D.3d 476, 479 [2d Dept 2004]). Conclusory and unsubstantiated claims of law office failure are insufficient. See Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790 [1st Dept 2012] (); Piton v. Cribb, 38 A.D.3d 741, 742 [2d Dep't 2007] (). In Dave Sandel, Inc. v. Specialized Indus. Services Corp., 35 A.D.3d 790, 791 [2nd Dept. 2006], the Second Department held, "Under the circumstances presented in this case, the defendant's purported continued belief that its prior attorney was handling this case for it was unreasonable and, thus, does not excuse its default." The Second Department further held, "Moreover, where, as here, there is a pattern of default and neglect, the negligence of the attorney is properly imputed to the client." (Id.).
As for the reason for Defendants' failure to interpose an answer, Mr. Taylor states that in November 2015, Plaintiff served the summons and complaint at the offices of Taylor Group, which is Mr. Taylor's plumbing company. Mr. Taylor states that "[i]mmediately after learning of the service of papers," he met with a lawyer named Francisco Serrano Walker, Esq., who "took the papers that were served and said he would take care of it." Mr. Taylor states that he would "periodically" follow up with Mr. Walker, and when he did, Mr. Walker "said he was working on it." Mr. Taylor states that in August 2016, after his bank account was frozen, he went to Mr. Walker who advised him that his case had been lost. Thereafter, on September 23, 2016, Mr. Taylor met with another attorney Mr. Ramadan who advised him that would have to file a motion to vacate the default judgment. Mr. Taylor states,
In his opposition, Plaintiff argues that Defendants have not presented a reasonable excuse for their delay...
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