Polir Construction, Inc. v. Etingin

• Decision Date: 12 September 2002
• Citation: 297 A.D.2d 509,747 N.Y.S.2d 20
• Parties: POLIR CONSTRUCTION, INC., Appellant,<BR>v.<BR>MAKS ETINGIN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

297 A.D.2d 509

747 N.Y.S.2d 20

POLIR CONSTRUCTION, INC., Appellant,

v.MAKS ETINGIN et al., Respondents.

Decided September 12, 2002.

Concur — Mazzarelli, J.P., Lerner, Rubin, Marlow and Gonzalez, JJ.

Plaintiff commenced this action to recover $107,082.36 allegedly due and owing for goods and labor provided in connection with construction projects at three properties owned by defendants.Plaintiff served interrogatories in October 1998, and defendants served their responses in January 1999.Dissatisfied with defendants' responses, plaintiff moved to strike their answers.Upon defendants' failure to appear at a February 26, 1999 calendar call, the IAS court conditionally granted plaintiff's motion, on default, unless defendants provided the requested discovery within 30 days.Subsequently, the court granted defendants' motion to vacate their default with plaintiff's consent.

On May 21, 1999, the court so-ordered a stipulation between the parties whereby defendants were directed to serve their answers to interrogatories by June 22, 1999.The parties appeared at a conference on January 14, 2000, and defendants had still not served their responses to the interrogatories.A preliminary conference order was executed requiring defendants to serve their responses within 30 days, granting plaintiff leave to renew its motion to strike on 72 hours notice should defendants fail to comply and directing plaintiff to file a note of issue by April 24, 2000.

On March 27, 2000, plaintiff failed to appear for a scheduled calendar call and the IAS court dismissed the action.

By motion dated April 6, 2001, plaintiff moved to vacate its default and to restore the action to the court's calendar.In support of the motion, counsel submitted an affirmation stating that due to the replacement of associates at her firm, she was unaware that the case had been calendared for March 27, 2000 and only learned of the dismissal when she discovered the dismissal order in the court file.

Plaintiff also submitted an affidavit of merit by Kevin Minihan(Minihan), its vice-president, stating in substance that plaintiff had furnished goods and labor in connection with several construction projects at three identified properties owned by defendant; that by July 21, 1993plaintiff had delivered all of the goods and fully performed all of the services required for the projects; that at the completion of the projects there was a balance owed to plaintiff of $107,082.36 and that defendants have refused to tender payment despite plaintiff's demands.

In opposition, defendants submitted an affirmation of counsel arguing that plaintiff had failed to present a reasonable excuse for its default and proof of a meritorious cause of action.At oral argument, the IAS court ruled that plaintiff's affidavit of merit was vague and conclusory, but granted plaintiff an opportunity to submit a supplemental affidavit setting forth in greater detail the merits of its case.Defendants were granted an opportunity to reply to any supplemental affidavit.

In compliance with the court's ruling, Minihan submitted a supplemental affidavit stating: (1) on or about November 10, 1992, plaintiff entered into an oral agreement with Stephen Zaiman, agent for the defendants, following the submission of written work proposals, to provide construction and renovation work at premises located in Queens and New York Counties; (2) the work materials consisted of furnishing and installing materials for kitchens and bathrooms, plumbing work, gutting the inside of apartments, repairing windows, replastering, installing electrical wiring and electrical outlets and erecting walls; (3) the work and materials were provided to the premises at different times, after which defendants had the opportunity to inspect; (4)defendants did not object to the work and requested that plaintiff continue to provide similar services to additional apartments; (5) as the work progressed plaintiff provided bills to defendants, who made partial payments; and (6) the work was completed and defendants owed a balance of $34,398.81 on premises located at 144-20 77th Road, Flushing, Queens, $39,273.55 on premises located at 102-62 67th Road, Forest Hills, Queens and $33,410 on premises located at 645 West End Avenue, New York, New York.

Defendants' counsel submitted an affirmation in opposition stating that plaintiff's supplemental affidavit failed to remedy the prior defects in that it failed "to identify the specific work alleged to be done, and the specific nature of the work as it pertains to individual properties."The IAS court denied plaintiff's motion to vacate, finding that its supplemental affidavit was "devoid of any significant new allegations or evidence concerning the actual work performed at the various locations."We reverse.

The dismissal of an action pursuant to 22 NYCRR 202.27 based upon a plaintiff's failure to appear at a calendar call should be vacated where the plaintiff shows a reasonable excuse for the default and a meritorious cause of action (Bloom v Primus Automotive Fin. Servs.,292 AD2d 410;Harwood v Chaliha,291 AD2d 234;Perez v New York City Hous. Auth.,290 AD2d 265).^[1]

Contrary to the IAS court's finding, plaintiff has sufficiently demonstrated that its cause of action has merit.Its supplemental affidavit set forth the existence of a contractual relationship between plaintiff and defendants, the nature of the work to be done, the dates the work was completed, the locations where the work was performed, partial...