Glore Jewelry Inc. v. 47th St. & 6th Ave. Antique Jewelry Corner

Decision Date04 January 2022
Docket NumberIndex 652134/2018
Citation2022 NY Slip Op 30070 (U)
CourtNew York Supreme Court
PartiesGLORE JEWELRY INC., GLORE WATCHES INC., Plaintiff, v. 47TH STREET & 6TH AVENUE ANTIQUE JEWELRY CORNER INC., DBA 47TH STREET & 6TH AVENUE ANTIQUE JEWELRY, JASON KHODADADIAN, JANET KHODADADIAN, Defendant.

Unpublished Opinion

PRESENT: HON. ANDREW BORROK, Justice

DECISION + ORDER ON MOTION

Andrew Borrok, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 005) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100 101, 102, 104, 105, 106, 120, 123, 124, 125, 126, 127, 128 129, 130, 131, 132, 133 were read on this motion to/for CONTEMPT.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 107, 108, 109, 110, 111, 112, 113, 114, 115 116, 117, 118, 119, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

Upon the foregoing documents and for the reasons set forth on the record (1.4.22), Janet Khodadadian's motion to vacate the default judgment (Mt. Seq. No. 006) (the Prior Decision; NYSCEF Doc. No. 71) is granted because Plaintiffs failed to serve notice of the motion for default and the motion for default judgment in accordance with the CPLR and otherwise in the interest of justice (McMahon v New York, 105 A.D.2d 101, 106 [1st Dept 1984]). The contempt motion (Mt. Seq. No. 005) is denied as moot as against Ms. Khodadadian and denied as against Robert Khodadadian (Robert) for failure to demonstrate clear and convincing evidence of willful conduct to evade the court's order (El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29 [2015]).

On the record before the court, it has not been established that Ms. Khodadadian had actual notice that the Plaintiffs were moving for default judgment as against her. At best the notice of motion was only sent by mail rather than served in accordance with the CPLR. It is unclear whether Ms. Khodadadian was served with the notice of motion of the default judgment and not just the summons and complaint. It is also unclear the extent to which the Defendants' prior attorney had contact with her. The Defendants' prior attorney was retained to represent both Ms. Khodadadian and her son, Jason Khodadadian (Jason). However, when the court granted the lawyer's motion to withdraw as counsel, citing a breakdown of communication, the lawyer's affidavit reveals the breakdown of communication was with Jason (NYSCEF Doc. No. 34) and did not indicate any communications or relationship with Ms. Khodadadian at all. What is clear is that Jason stone walled and did not communicate with either the court or their prior lawyer. Additionally, Ms. Khodadadian's affidavit suggests a meritorious defense, namely that she is not an officer of the business, she did not sign any of the checks at issue, and her involvement was only to visit her son (NYSCEF Doc. No. 109). Given the strong public policy in favor of hearing cases on the merits (ArredEnterprises Corp. v Indemnity Ins. Co., 108 A.D.2d 624, 626 [1st Dept 1985]), the motion to vacate the default judgment against her only must be granted and the Plaintiffs shall serve an amended judgment on notice.

Plaintiffs' motion for contempt must be denied as moot as against Ms Khodadadian and discovery must proceed. The Plaintiffs aver in the summons and complaint that the mother and son were both co-owners and co-conspirators in the fraud. They are permitted to test their theory and...

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