Paulus v. Christopher Vacirca, Inc.

• Decision Date: 08 April 2015
• Docket Number: 2012-10966
• Parties: Alan PAULUS, et al., respondents, v. CHRISTOPHER VACIRCA, INC., defendant, Christopher Vacirca, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 116
6 N.Y.S.3d 572
2015 N.Y. Slip Op. 02944

Alan PAULUS, et al., respondents
v.
CHRISTOPHER VACIRCA, INC., defendant
Christopher Vacirca, appellant.

2012-10966

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

April 8, 2015.

6 N.Y.S.3d 572

Robert S. Stone, Jr., Stony Brook, N.Y., for appellant.

Peter T. Roach & Associates, P.C. (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling ], of counsel), for respondents.

LEONARD B. AUSTIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

6 N.Y.S.3d 573

COHEN, J.

128 A.D.3d 117

At issue on this appeal is whether the failure of a party to give notice of a motion for leave to enter a default judgment to a defendant who has previously appeared in the action entitles such defendant to vacatur of the default judgment. For the reasons set forth below, we hold that the failure to comply with the notice requirements of CPLR 3215(g)(1) deprived the Supreme Court of jurisdiction to entertain the plaintiffs' motion for leave to enter a default judgment. Accordingly, the default judgment should have been vacated pursuant to CPLR 5015(a)(4).

The defendant Christopher Vacirca (hereinafter the appellant) operated a home improvement company, the defendant Christopher Vacirca, Inc. The plaintiffs, Alan Paulus and Danielle Paulus, entered into a written home improvement contract with Christopher Vacirca, Inc., to remodel their home. Christopher Vacirca, Inc., completed work in July 2005. In September 2005, the plaintiffs allegedly experienced flooding that damaged

128 A.D.3d 118

both their home and personal property. The plaintiffs commenced this action against both Christopher Vacirca, Inc., and the appellant in May 2006, asserting six causes of action to recover damages, inter alia, for breach of contract and negligence. On August 14, 2007, the plaintiffs obtained a default judgment against both Christopher Vacirca, Inc., and the appellant, which was entered upon their failure to appear or answer. However, on April 1, 2008, the Supreme Court vacated the August 2007 default judgment insofar as against the appellant on the ground that service had not been properly effected.

After further motion practice unrelated to the instant appeal, the appellant filed a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him. By order entered January 21, 2009, the Supreme Court directed the dismissal of five of the six causes of action insofar as asserted against the appellant. The court denied that branch of the appellant's motion which was to dismiss the remaining cause of action insofar as asserted against him, which sought to pierce the corporate veil and hold him personally liable for any judgment entered against Christopher Vacirca, Inc., with leave to renew that branch of the motion after discovery was completed. The court also directed the appellant to answer the complaint within 30 days.

When the appellant failed to answer the remaining cause of action as directed, the plaintiffs moved for and obtained a default judgment against him dated March 31, 2009 (hereinafter the March default judgment), in the principal sum of $27,647.10. The appellant then moved, inter alia, pursuant to CPLR 5015 to vacate the March default judgment on several grounds. In an affirmation in support of his motion, the appellant's attorney argued, in effect, that the failure to answer the remaining cause of action was excusable. In this regard, counsel maintained that based on his recollection of discussions held when the Supreme Court rendered its decision on the motion to dismiss the complaint, he believed that the plaintiffs were required to serve an amended complaint, and that the appellant had 30 days from service of such amended complaint to serve his answer. Counsel also argued that the appellant was entitled to vacatur of the March default judgment because the plaintiffs had failed to serve his attorney with five days' notice of their motion for leave to enter a default judgment as required by CPLR 3215(g)(1).

128 A.D.3d 119

In the order appealed from, the Supreme Court denied that branch of the appellant's motion which was to vacate the March default judgment. The court concluded that the appellant failed to establish

6 N.Y.S.3d 574

his entitlement to relief pursuant to CPLR 5015 (a)(1) because he did not demonstrate the existence of a reasonable excuse for his failure to answer the complaint, and the existence of a meritorious defense. Relying upon a decision from the Appellate Division, Third Department, the court also found that the appellant was not entitled to vacatur of the default judgment pursuant to CPLR 5015(a)(4) because “a plaintiff's failure to comply with the provisions of CPLR 3215(g) does not render the resulting judgment a ity and does not relieve a defendant seeking vacatur from demonstrating the required excuse and meritorious defense.”

The Supreme Court properly concluded that the appellant was not entitled to vacatur of the March default judgment pursuant to CPLR 5015(a)(1) because he failed to demonstrate a reasonable excuse for his underlying default arising from his failure to answer the remaining cause of action alleged in the complaint. Although the possible need to amend the remaining cause of action which sought to pierce the corporate veil of Christopher Vacirca, Inc., was discussed by the Supreme Court and the attorneys for the parties when the court rendered its decision on the appellant's motion to dismiss, the court clearly directed that an answer to that cause of action be served within 30 days. Thus, the appellant's claim that he was not required to serve an answer until after an amended complaint had been served is unsupported by the record, and his attorney's alleged misunderstanding in this regard does not constitute a reasonable excuse (see Neilson v. 6D Farm Corp., 123 A.D.3d 676, 998 N.Y.S.2d 397 ; Borrie v. County of Suffolk, 88 A.D.3d 842, 843, 931 N.Y.S.2d 510 ; White v. Daimler Chrysler Corp., 44 A.D.3d 651, 652, 843 N.Y.S.2d 168 ; Rodriguez v. Ng, 23 A.D.3d 450, 451, 805 N.Y.S.2d 570 ; Everything Yogurt, Inc. v. Toscano, 232 A.D.2d 604, 606, 649 N.Y.S.2d 163 ). Since the appellant did not demonstrate a reasonable excuse for his failure to answer the complaint, we need not consider whether he sufficiently demonstrated the existence of a potentially meritorious defense (see Cervini v. Cisco General Const., Inc., 123 A.D.3d 1077, 1 N.Y.S.3d 195 ; Cavalry SPV I, LLC v. Frenkel, 119 A.D.3d 724, 725, 989 N.Y.S.2d 344 ; Manufacturers and Traders Trust Co. v. Consolidated Const. Group, LLC, 114 A.D.3d 834, 980 N.Y.S.2d 793 ).

Although the appellant failed to demonstrate a basis to be relieved from his underlying default in serving an answer, we

128 A.D.3d 120

nevertheless conclude that the March default judgment should have been vacated pursuant to CPLR 5015 (a)(4) because the plaintiffs' failure to provide notice of the motion for leave to enter a default judgment, as required by CPLR 3215(g)(1), deprived the court of jurisdiction to entertain that motion.

CPLR 3215(g) sets forth when and under what circumstances notice of an application, or motion as is the case here, for leave to enter a default judgment must be given. As relevant to this appeal, it provides that a defendant who appears in an action but subsequently defaults “is entitled to at least five days' notice of the time and place” of the motion for leave to enter a default judgment. The requirement that an appearing defendant be given notice is consistent with the mandates of CPLR 2103(e), which generally requires that a paper served on any party to a litigation also be served on a party who has appeared in the action whether or not such party has subsequently defaulted (see David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3215:18; see also Kraus Bros. v. Hoffman & Co., 99 A.D.2d 401, 402, 470 N.Y.S.2d 1 ). Providing such notice gives a

6 N.Y.S.3d 575

defendant who has appeared in the action an opportunity to move to be relieved of his or her underlying default prior to the entry of judgment, as well as to raise objections to the sufficiency of the proof offered in support of the motion for leave to enter a default judgment and to the proposed judgment itself.

A defendant appears when, inter alia, he or she makes “a motion which has the effect of extending the time to answer,” such as a motion to dismiss pursuant to CPLR 3211 (CPLR 320[a] ; see Colbert v. International Sec. Bur., 79 A.D.2d 448, 460, 437 N.Y.S.2d 360 ). Here, the appellant appeared through counsel when he moved pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him. Accordingly, it is clear that he was entitled to notice of the motion for leave to enter a default judgment pursuant to CPLR 3215(g)(1) (see CPLR 2103[e] ; 3215[g][1]; Walker v. Foreman, 104 A.D.3d...