Kee Yip Realty Corp. v. Win Tax Servs. Inc.

• Decision Date: 01 August 2016
• Docket Number: Index No. 159064/2015
• Citation: 2016 NY Slip Op 31471 (U)
• Parties: KEE YIP REALTY CORP., Plaintiff, v. WIN TAX SERVICES INC and WING LOK WANG, Defendants.
• Court: New York Supreme Court

2016 NY Slip Op 31471(U)

KEE YIP REALTY CORP., Plaintiff,
v.
WIN TAX SERVICES INC and WING LOK WANG, Defendants.

Index No. 159064/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15

August 1, 2016

DECISION and ORDER

Mot. Seq. 002

HON. EILEEN A. RAKOWER, J.S.C.

Plaintiff Kee Yip Realty Corp. ("Plaintiff") commenced this breach of contract action seeking to collect additional rents totaling $110,242.07 from defendants Win Tax Services Inc. and Wing Lok Wang (collectively, "Defendants") allegedly due under a lease agreement (the "Lease") entered into by Plaintiff, as owner, and Win Tax Services Inc., as tenant, on August 1, 2005. Defendant Wing Lok Wang is the guarantor of the Lease.

On November 10, 2015, Defendants filed a motion to dismiss the complaint, pursuant to CPLR 3211(a)(1) and (7), and CPLR 213(2). Defendants' motion to dismiss was granted without opposition on February 3, 2016.

Plaintiff now moves for an order, pursuant to CPLR 2001, 2005, and 5015, vacating the judgment and allowing Plaintiff to submit opposition papers to Defendants' motion to dismiss, and granting Plaintiff leave to amend the complaint pursuant to CPLR 3025. Plaintiff submits the affidavit of Pao C. Lee, President of Kee Yip Realty Corp., and the affirmation of Rina Milos, Esq. in support.

In opposition, Defendants submit the attorney affirmation of Renee Digrugilliers, Esq., annexing inter alia (i) a stipulation signed by the parties, dated October 13, 2015, extending the time to answer or move to November 16, 2015; (ii) e-mail service notification of the motion to dismiss sent to the parties, dated November 13, 2015; and (iii) rent checks written by Win Tax Services Inc. to Kee

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Yip Realty Corp. in the amount of $4,499.00, dated January 2011, January 2012, January 2013, January 2014, and January 2015.

Defendants argue that the motion to vacate should be denied because Plaintiff has failed to demonstrate an excusable default or a meritorious claim, as required under CPLR 5015.

In reply, Plaintiff submits the affirmation of Rina Milos, Esq., in which Milos avers that her law office "saw no email notification from the Court regarding the Defendant's motion to dismiss" and that Plaintiff's default was therefore unintentional and due to law office failure.

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). 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 Dep't 1990).

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." CPLR § 2005. A claim of law office failure may be accepted as a reasonable excuse where the...