Guadino v. Rudd

• Citation: 66 Misc.3d 1211 (A),120 N.Y.S.3d 719 (Table)
• Decision Date: 16 January 2020
• Docket Number: 026747/15
• Parties: Mario L. GUADINO, Plaintiff, v. Michael A. RUDD, Defendant.
• Court: New York Civil Court

66 Misc.3d 1211 (A)
120 N.Y.S.3d 719 (Table)

Mario L. GUADINO, Plaintiff,
v.
Michael A. RUDD, Defendant.

026747/15

Civil Court, City of New York.

Decided January 16, 2020

Plaintiff's Attorney: Jonathan E. Cohen, Esq., 244 5th Avenue, Suite J-206, New York, NY 10001-7604, Phone:(646) 236-4064

Defendant's Attorney: Michael Mantell, Esq., 60 East 42nd Street, Suite 1638, New York, NY 10165-6220, Phone:(212) 750-3896

Carol Sharpe, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of motion to vacate a default judgment and cross-motion for summary judgment, as indicated below:

Papers Numbered

Order to Show Cause and Exhibits Annexed 1

Cross-Motion for Summary Judgment 2

Defendant moved by order to show cause seeking to vacate a default judgment. Plaintiff cross-moved for an order striking defendant's jury demand, striking defendant's response to plaintiff's notice to admit, treating the notice to admit as an admission, and, based on those admissions, granting summary judgment pursuant to CPLR § 3212. Defendant's order to show cause is granted. Plaintiff's cross-motion is granted in part and denied in part.

Plaintiff commenced this action as a self-represented litigant seeking $25,000 for "Failure to return security. Loss of time from work." Defendant failed to appear and a judgment for $7,072.34 was issued on June 27, 2016. The parties, represented by counsel, entered into a stipulation to resolve their pending motions, by which they agreed to vacate the judgment, for plaintiff to serve an amended complaint, and for defendant to interpose an answer. The amended complaint, dated June 1, 2017, sought damages in the amount of $25,000 for failure to return the security deposit and for reasonable attorney's fees. Defendant failed to answer, resulting in a default judgment.

The parties entered into a second stipulation by which they agreed to vacate the judgment, permit defendant to file an answer, waive discovery, and for plaintiff to file a notice of trial. In his answer dated October 24, 2017, defendant raised defenses and counterclaims totaling $37,468.76 for repairs and loss of rental income. Plaintiff filed the notice of trial on December 7, 2017, requesting a trial without a jury. Defendant filed a demand for a jury trial on February 8, 2018.

In support of this order to show cause seeking to vacate the default judgment, defendant submitted, among other things, a letter from defendant's counsel showing that on March 13, 2018, he asked plaintiff's counsel to agree to adjourn the case on April 6, 2018, because he would be on vacation; an email from plaintiff's counsel dated March 15, 2018 giving his consent to the adjournment; and the letter from plaintiff's counsel notifying defendant of the April 6 default and that the case was put on for an inquest on April 25.

In support of this cross-motion, plaintiff submitted his own affidavit; a copy of the lease; the notice to admit; and the response to the notice to admit.

CPLR 5015(a)(1) provides that a party may be relieved from a judgment or order based on an excusable default. The party seeking relief from an order or judgment must provide a reasonable excuse for the failure to appear and demonstrate the merit of the cause of action or defense. Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co ., 67 NY2d 138, 492 N.E.2d 116, 501 N.Y.S.2d 8 (1986) ; Rugieri v. Bannister , 7 NY3d 742, 853 N.E.2d 231, 819 N.Y.S.2d 861 (2006) ("plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action."); Goldman v. Cotter , 10 AD3d 289, 291, 781 N.Y.S.2d 28 (1st Dept. 2004). Here, plaintiff did not oppose defendant's motion to vacate the default. This Court finds that defendant established a reasonable excuse as he submitted evidence in writing that plaintiff agreed to the adjournment on April 6, 2018. Additionally, this Court will exercise its discretion in treating defendant's submissions of repair costs as "facts indicating a meritorious defense."

Plaintiff seeks summary judgment on the grounds that defendant's attorney's response to the notice to admit was improper and must be stricken, thereby causing the notice to admit to become an admission by defendant, leaving no issue for trial. "The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v. Waisman, 39 AD3d 303, 306, 833 N.Y.S.2d 89 (1st Dept. 2007), citing Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985.). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). The burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists warranting a trial. CPLR § 3212(b) ; Zuckerman v. City of New York , 49 NY2d 557 (1980) ; Gonzalez v. 98 Mag Leasing Corp ., 95 NY2d 124, 733 N.E.2d 203, 711 N.Y.S.2d 131 (2000).

"It is well established that summary judgment may not be granted...