Notaro v. Performance Team

• Decision Date: 23 May 2018
• Docket Number: Index No. 9932/10,2016–09889,2016–10887
• Citation: 77 N.Y.S.3d 700,161 A.D.3d 1093
• Parties: Philip NOTARO, Jr., respondent, v. PERFORMANCE TEAM, et al., defendants, John Arcell, appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1093

77 N.Y.S.3d 700

Philip NOTARO, Jr., respondent,

v.PERFORMANCE TEAM, et al., defendants, John Arcell, appellant.

2016–09889

2016–10887

Index No. 9932/10

Supreme Court, Appellate Division, Second Department, New York.

Decided May 23, 2018

Edward F. Westfield, P.C., Riverdale, NY, for appellant.

Michael A. Kofsky, PLLC, West Islip, NY, for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant John Arcell appeals from two orders of the Supreme Court, Queens County (Timothy J. Dufficy, J.), dated May 13, 2016, and October 13, 2016, respectively. The order dated May 13, 2016, denied that defendant's motion (a) to vacate an order of the same court (Orin R. Kitzes, J.), dated June 24, 2014, in effect, pursuant to 22 NYCRR 202.27 striking his answer based upon his default in appearing for scheduled conferences before the court and ordering an inquest on damages, (b) for leave to serve and file an amended answer, and (c) for summary judgment dismissing the complaint insofar as asserted against him. The order dated October 13, 2016, inter alia, granted the plaintiff's motion to preclude that defendant's expert from testifying at the inquest on damages.

ORDERED that the order dated May 13, 2016, is reversed, on the law, on the facts, and in the exercise of discretion, the motion of the defendant John Arcell to vacate the order dated June 24, 2014, for leave to serve and file an amended answer, and for summary judgment dismissing the complaint insofar as asserted against him is granted, the order dated June 24, 2014, is vacated, and the amended answer in the form attached to the papers in support of that defendant's motion is deemed served; and it is further,

ORDERED that the appeal from the order dated October 13, 2016, is dismissed as academic; and it is further,

ORDERED that one bill of costs is awarded to the defendant John Arcell.

In April 2010, the plaintiff commenced this action against, among others, the defendant John Arcell. Arcell interposed a pro se answer on or about May 2010. Upon Arcell's default in appearing at any of the conferences scheduled before the Supreme Court, the court issued an order, dated June 24, 2014, in effect, pursuant to 22 NYCRR 202.27 striking Arcell's answer and ordering an inquest on damages. Arcell moved to vacate that order, for leave to serve and file an amended answer, and for summary judgment dismissing the complaint insofar as asserted against him. In an order dated May 13, 2016, the court denied his motion.

The plaintiff thereafter moved pursuant to CPLR 3101(d)(1)(i), inter alia, to preclude Arcell's expert from testifying at the inquest on damages. In an order dated October 13, 2016, the Supreme Court, among other things, granted the plaintiff's motion. Arcell appeals from the orders dated May 13, 2016, and October 13, 2016.

Generally, to vacate an order striking a defendant's answer based upon his or her default in appearing for a scheduled conference before the court, the defendant is required to demonstrate both a reasonable excuse for his or her failure to appear and a potentially meritorious defense (see Wright v. City of Poughkeepsie , 136 A.D.3d 809, 809, 24 N.Y.S.3d 523 ; Mazzio v. Jennings , 128 A.D.3d 1032, 1032, 8 N.Y.S.3d 596 ; Hanscom v. Goldman , 109 A.D.3d 964, 965, 972 N.Y.S.2d 76 ; Gazetten Contr., Inc. v. HCO, Inc. , 45 A.D.3d 530, 530, 844 N.Y.S.2d 721 ). However, "[i]n the absence of actual notice of [a] conference date, [a] defendant's failure to appear at that conference ‘[cannot] qualify as a failure to perform a legal duty, the very definition of a default’ " ( Foley Inc. v. Metropolis Superstructures, Inc. , 130 A.D.3d 680, 681, 11 N.Y.S.3d 873, quoting Pelaez v. Westchester Med. Ctr. , 15 A.D.3d 375, 376, 789 N.Y.S.2d 533 ). In that situation, the defendant's default is considered a nullity and vacatur of the default "is required as a matter of law and due process, and no showing of a potentially meritorious defense is required" ( Bonik v. Tarrabocchia , 78 A.D.3d 630, 632, 910 N.Y.S.2d 530 ; see Foley Inc. v. Metropolis Superstructures, Inc. , 130 A.D.3d at 681, 11 N.Y.S.3d 873 ; Rosas v. Stieg , 108 A.D.3d 693, 694, 968 N.Y.S.2d 886 ; Vasquez v. New York City Health & Hosps. Corp. , 100 A.D.3d 868, 954 N.Y.S.2d 206 ; Pavlou v. Associates Food Stores, Inc. , 96 A.D.3d 919, 919–920, 946 N.Y.S.2d 494 ; Bonik v. Tarrabocchia , 78 A.D.3d at 632, 910 N.Y.S.2d 530 ; Tragni v. Tragni , 21 A.D.3d 1084, 1085–1086, 803 N.Y.S.2d 617 ; Pelaez v. Westchester Med. Ctr. , 15 A.D.3d at 376, 789 N.Y.S.2d 533 ).

Here, in support of that branch of his motion which was to vacate his default,...