Ruiz v. Laophermsook

• Citation: 2022 NY Slip Op 30093 (U)
• Decision Date: 12 January 2022
• Docket Number: Index 157136/2019
• Parties: CATALINA (KATHY) RUIZ, Plaintiff, v. ROE LAOPHERMSOOK, Defendant.
• Court: United States State Supreme Court (New York)

2022 NY Slip Op 30093(U)

CATALINA (KATHY) RUIZ, Plaintiff,
v.
ROE LAOPHERMSOOK, Defendant.

Index No. 157136/2019

Supreme Court, New York County

January 12, 2022

Unpublished Opinion

PRESENT: HON. DAVID B. COHEN Justice.

DECISION + ORDER ON MOTION

DAVID B. COHEN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for RESTORE/VACATE___.

In this action seeking damages for, inter alia, defamation and tortious interference with business and contractual relationships, plaintiff Catalina (Kathy) Ruiz moves, in effect, pursuant to CPLR 5015(a), to vacate the decision and order of this Court, entered November 17, 2020, which granted defendant Roe Laophermsook's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7) on default. Defendant opposes the motion. After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows.

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff commenced this action on July 22, 2019 alleging that, on April 24, 2019, defendant defamed her by claiming that she took credit for work she did not perform. Doc. 1. She also claimed tortious interference with current and prospective contractual relationships she had with clients, intentional and negligent infliction of emotional distress, as well as an injunction restraining defendant from defaming her. Doc. 1.

1

On May 14, 2020, defendant filed a motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7). Doc. 19. The motion was submitted unopposed on September 18, 2020. By decision and order entered November 17, 2020, this Court granted defendant's motion on default and dismissed the complaint. Doc. 25.

On September 22, 2021, plaintiff discharged her attorney and began to represent herself pro se. Doc. 27.

Plaintiff now moves for an order "[restoring the original [p]etition to the Court's calendar." Doc. 30.^[1] In support of the motion, plaintiff argues that "a number of extraordinary circumstances . . . have prevented [her] from prosecuting this case in a timely manner", including the loss of her job in April 2020 due to the Covid-19 pandemic; the birth of her child in May 2020; "multiple physical challenges and significant emotional distress resulting from such circumstances" (Doc. 31 at par. 2); and "other important matters, including her overall health." Doc. 31 at par. 15. She further maintains that she was not "served with any papers declaring this case dismissed." Doc. 31 at par. 2. Additionally, plaintiff asserts that defendant should not benefit from her failure to oppose the motion to dismiss since she had withdrawn her motion for default against defendant and allowed him to answer. Doc. 41

In opposition, defendant argues that since the motion actually seeks to vacate the order of this Court entered November 17. 2020, it must be considered pursuant to CPLR 5015(a), and that plaintiff has failed to establish a reasonable excuse for her default and a meritorious claim, as required by that statute. Doc. 34.

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