Schalberg v. Broadway Pops Int'l, Inc.
| Decision Date | 29 June 2018 |
| Docket Number | Index No: 650800/2016 |
| Citation | 2018 NY Slip Op 31412 (U) |
| Parties | Jeremiah James Schalberg, an individual, v. Broadway Pops International, Inc., and Teri Kocyigit a/k/a Teri Hansen Wilborn, an individual, Defendants. |
| Court | New York Supreme Court |
This action involves claims for breach of contract, breach of fiduciary duty, negligent misrepresentation and conversion against defendants Teri Kocyigit a/k/a Teri Hansen Wilborn ("Kocyigit") and Broadway Pops International, Inc.'s ("BPI") (collectively, "Defendants") arising from Defendants' alleged failure to book plaintiff Jeremiah James Schalberg ("Plaintiff") for certain shows in accordance with the parties' booking agent agreement.
By Decision and Order dated January 3, 2017, this Court granted Plaintiff's motion for a default judgment as to liability and ordered an assessment of damages against Defendants. The matter was assigned to Justice Gammerman, and a hearing was conducted on March 30, 2017. By Decision and Order dated November 27, 2017, plaintiff's motion to confirm Justice Gammerman's findings was granted. The order directed the Clerk to enter judgment in favor of Plaintiff and against Defendants in the amount of $62,500.00 with interest.
By Notice of Motion filed on March 21, 2018, Defendants move pursuant to CPLR § 5015 to set aside Plaintiff's entry of default and judgment based on excusable default. Defendants submit the affidavit of Kocyigit, affidavit of Drew Sherman ("Sherman"), and the affirmation of Anthony K. McClaren.
Plaintiff opposes, and submits the attorney affirmation of Corey D. Boddie ("Boddie").
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).
Here, this Court granted Plaintiff's motion for a default judgment to Plaintiff against Defendants on liability on January 3, 2017. (See Exhibit F to Boddie Aff.). The order was served with notice of entry upon Defendants on January 9, 2017. (See Exhibit G to Boddie Aff.). On November 27, 2017, this Court ordered judgment against Defendants. Since Defendants made this motion in March 21, 2017 and less than one year after a final judgment, the motion is timely.
Requirements of 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 Dept 1990]. "The determination whether a reasonable excuse has been offered is sui generis and should be based on all relevant factors, among which are the length of the delay chargeable to the movant, whether the opposing party has been prejudiced, whether the default was willful, and the strong public policy favoring the resolution of cases on the merits." Chevalier v. 368 E. 148th Street Associates, LLC, 80 A.D.3d 411 (1st Dept 2011) (citations omitted). A claim of law office failure may be accepted as a reasonable excuse where the claim is supported by a "detailed and credible" explanation of the default at issue. Henry v. Kuveke, 9 A.D.3d 476, 479 (2d Dep't 2004).
Here, Kocyigit submits an affidavit in which she avers that neither she nor BPI have ever "been personally served with the underlying Summons and Complaint in this action." (Kocyigit Aff., ¶5). She avers:
Kocyigit avers that on March 3, 2016, she was informed by her husband that she had received a package from Plaintiff's attorney Boddie. (Kocyigit Aff., ¶7). She states that on March 4, 2016, she wrote to Boddie "telling him that [she] was away on The Sound of Music tour and would not be finished touring until September 2016 (this tour was later extended through the end of July 2017)," "no representative of BPI would be at the office," and that she should be contacted via email. (Kocyigit Aff., ¶7). She states that Boddie never responded to her email. (Kocyigit Aff., ¶8). A copy of the referenced email is not provided by Defendants.
Kocyigit states that after she emailed Boddie, she engaged the law firm of The Adli Law Group, P.C. ("ASLI") to represent her, and officially retained Drew Sherman as her lawyer on March 22, 2016. (Kocyigit Aff., ¶9). She states that after she retained Sherman, she "left the care of this case in his hands," and while she would receive correspondence at her home, she "merely passed the contents of those mailings on to Mr. Sherman" and assumed that Boddie was also sending the letters to Sherman too. (Kocyigit Aff., ¶11).
Here, while Kocyigit states in her affidavit that she was never "personally served," she does not assert and fails to demonstrate that service by other means was improper. A process server's sworn affidavit of service ordinarily constitutes primafacie evidence of proper service pursuant to the CPLR and raises a presumption that a proper mailing occurred. (See, Strober King Bldg. Supply Centers, Inc. v. Merkley, 697 N.Y.S. 2d 319 [2nd Dept 1999]). A sworn affidavit alleging the particulars concerning why service is improper is required. (See, Hinds v. 2461 Realty Corp., 169 A.D. 2d 629 [1st Dept 1991]). According to Plaintiff's affidavits of service, Kogyigit was served on March 3, 2016 at her usual place of abode pursuant to nail and mail (CPLR 308[4]), after three previous attempts were made on different dates at different dates. BPI was served via the Secretary of State on August 4, 2016. Kocyigit does not challenge these affidavits of service and the manner in which service was rendered pursuant to them.
Instead, Defendants' purported excuse for their default is that they relied on their attorney Sherman, and Plaintiff's counsel should have sent all correspondence to Sherman on their behalf, and not to them.
In Sherman's affidavit, Sherman states that he is "a duly licensed attorney in the State of California," and is "not licensed to practice in New York." (Sherman Aff. ¶1). Sherman avers that in March 22, 2016, BPI and Kocyigit retained him to defend them in this case. (Sherman Aff. ¶3). Sherman states that on March 22, 2016, he contacted Boddie by telephone and left him a voicemail advising him that he was Defendants' attorney of record. (Sherman Aff. 4). Sherman states that Boddie did not return his voicemail. (Sherman Aff. ¶4). Sherman states that on March 29, 2016, he called Bodie and left him another voicemail, advising him that he was Defendants' attorney of record and that he would accept service of the Summons and Complaint. (Sherman ¶5). Sherman states that after a few more attempts to speak to Boddie on the telephone including one missed voicemail from Boddie, he sent Boddie a letter on April 19, 2016 advising him that he represented Defendants, believed service was improper, and was reviewing the merits of the claims. (Sherman Aff. ¶¶ 6-8). Sherman also proposed a settlement in that letter. (Sherman Aff. ¶ 8). Sherman states:
Sherman further states that he learned of Plaintiff's default judgment on March 8, 2017, but thereafter "felt seriously ill and spent time in the hospital." (Sherman Aff., ¶11). Sherman states, "By the time I was able to get back to reviewing this file, after I recovered in August 2017, started to get back to work, and caught up on my work, it was already 2018." (Sherman Aff., ¶11).
As stated above, Defendants' purported excuse for their default is that they relied on their attorney Sherman, and Plaintiff's counsel should have sent all correspondence to Sherman on their behalf, and not to them.
First, there is nothing in the record to demonstrate that Boddie should have served Sherman with papers on Defendants' behalf. Nowhere in Sherman's April 19, 2016 letter to Boddie does he state that would accept service on behalf of Defendants. Furthermore, neither Sherman nor his LA based law firm made an actual appearance on behalf of Defendants prior to the entry of default judgment.
Furthermore, even assuming that Sherman was acting as Defendants' counsel and representing them in this matter as early as April 19, 2016, Sherman does not explain why he did not file an answer on Defendants...
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