Stephan B. Gleich & Associates v. Gritsipis
| Decision Date | 21 June 2011 |
| Docket Number | 2010-01461,Index No. 23858/93 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Stephan B. Gleich & Associates, respondent, v. Louis Gritsipis, appellant. |
MARK C. DILLON, J.P.
RUTH C. BALKIN
ARIEL E. BELEN
APPEAL by the defendant, in an action to recover, inter alia, legal fees for services rendered, among other things, on an account stated, and for unjust enrichment, from so much of an order of the Supreme Court (R. Bruce Cozzens, Jr., J.), dated January 19, 2010, and entered in Nassau County, as denied that branch of his motion which was to vacate a judgment in the total sum of $67,245.41, entered by the clerk of the same court on February 7, 1994, against him, upon his failure to answer or appear.
Alexandra Siskopoulos, Brooklyn, N.Y., for appellant.
Gleich, Seigel & Farkas, Great Neck, N.Y. (Lawrence W. Farkas and Gabriel A. Leventhal of counsel), for respondent.
OPINION & ORDERDILLON, J. P. CPLR 3215(a) permits the clerk of the court to enter judgment in favor of a plaintiff upon the submission of the requisite proof, when "the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain" (CPLR 3215[a]). As the clear language of the statute indicates, the circumstances under which the clerk is authorized to act are quite narrow, as they are limited to claims seeking money alone where the claims consist of either precise monetary amounts or monetary amounts which can be arrived at by mere arithmetical computation. Moreover, "requisite proof" of such claims must be submitted to the clerk. Here, the plaintiff's summons with notice sought damages based on causes of action for legal fees and disbursements, unjust enrichment, and upon an account stated. We address whether a clerk may properly enter a judgment on default under CPLR 3215(a) where, as here, causes of action were asserted beyond those seeking a sum certain and, if not, whether the vacatur of the judgment requires a vacatur of the defendant's underlying default.
The plaintiff law firm, Stephan B. Gleich & Associates, commenced this action by the filing of a summons with notice in the Supreme Court, Nassau County, on August 17, 1993 (hereinafter the 1993 action). The plaintiff sought an award of unpaid legal fees and disbursements allegedly incurred by the defendant, Louis Gritsipis, in earlier landlord-tenant matters litigated in the Supreme Court, New York County, and in the Civil Court, New York County. The causes of action asserted in the summons with notice were for "fees for legal services and disbursements rendered, unjust enrichment and upon an account stated." The specific relief sought was the sum of $80,000.
An affidavit of service reflects service upon the defendant on September 7, 1993, bydelivery of a copy of the summons with notice to a person of suitable age and discretion named Evelyn Monterosa at the defendant's place of business, and by a mailing on the next day to the defendant's last known place of business in an envelope marked "personal and confidential" (CPLR 308[2]). An additional affidavit reflects a follow-up mailing on October 22, 1993, to the defendant's last known residence and to his place of business in an envelope marked "personal and confidential," presumably pursuant to CPLR 3215(g)(3). The defendant neither appeared nor answered in the action.
On January 7, 1994, the plaintiff presented to the Nassau County Clerk an affidavit of facts stating that the parties had entered into an agreement for legal services compensable at specified hourly rates for partners and various associates, and that the hours of legal work performed entitled the plaintiff to the sum of $61,917.04 for legal fees, plus unreimbursed appellate printing costs of $4,958.37, for a total sum owed of $66,875.41. Attached to the affidavit were invoices constituting "accounts stated" for professional services rendered and disbursements incurred between October 29, 1990, and December 2, 1992. The affidavit of facts evidenced service of process upon the defendant pursuant to CPLR 308(2), with a follow-up copy transmitted pursuant to 3215(g), and established that the billing invoices were accepted by the defendant without objection. A clerk's judgment was thereafter executed on February 7, 1994, for the requested sum of $66,875.41, plus statutory costs and disbursements in the sum of $370, for a total judgment in the sum of $67,245.41 (hereinafter the 1994 judgment).
The plaintiff commenced a second action against the defendant on March 17, 2009, by the filing of a summons and complaint in the Supreme Court, Nassau County, under Index No. 09-006753 (hereinafter the 2009 complaint). The plaintiff alleged that no portion of the 1994 judgment had been satisfied, that more than 10 years had passed since the judgment was docketed, and that the judgment should be renewed pursuant to CPLR 5014(1). The defendant answered the 2009 complaint, asserted affirmative defenses, and separately moved under the index number of the 1993 action, inter alia, to vacate the 1994 judgment. In support of the motion, the defendant maintained, among other things, that he had never been properly served with the 1993 summons with notice; that he did not know of the 1994 judgment until the commencement of the 2009 action; that he did "not remember an Evelyn Monterosa, the person of suitable age and discretion who was served according to the original affidavit of service"; and that any outstanding legal fees had been incurred solely by his corporation, 2479 Kandila Corp., which went out of business in 1992. The plaintiff opposed the motion, arguing that the defendant's papers failed to establish a lack of jurisdiction under CPLR 5015(a)(4), and also failed to establish a reasonable excuse and a potentially meritorious defense to the action as required by CPLR 5015(a)(1).
In the order appealed from, the Supreme Court denied that branch of the defendant's motion which was to vacate the 1994 judgment, finding that the defendant's conclusory denial of service did not qualify as a reasonable excuse for failing to appear in the action, and that the defendant's claimed defenses were refuted by documentary evidence.
The defendant appeals, arguing that the record establishes grounds for vacating the default under either CPLR 5015(a)(1) or 5015(a)(4). The defendant also argues, for the first time on appeal, that since the plaintiff's summons with notice included a cause of action for both a sum certain and alternative equitable causes, the clerk was without authority to enter any judgment in favor of the plaintiff.
For reasons set forth below, we modify the order appealed from, and remit the matter to the Supreme Court, Nassau County, for an inquest on the issue of damages and other ancillary relief.
Contrary to the defendant's contention, the plaintiff properly obtained jurisdiction over him under CPLR 308(2). The affidavit of the plaintiff's process server constitutes prima facie evidence of proper service (see Matter of Perskin v Bassaragh, 73 AD3d 1073; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970, 971; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Jefferson v Netusil, 44 AD3d 621). The defendant's failure to recall the person of suitable age and discretion who was served, without specific facts of the identity of his employees, employment records, payroll records, or affidavits from others, fails to rebut the process server's affidavit (see Interlink Metals & Chems. v Kazdan, 222 AD2d 55, 56; see also Pezolano v Incorporated City of Glen Cove, 71 AD3d at 971; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Silverman v Deutsch, 283 AD2d 478, 478-479). Thus, there is an insufficient basis to vacate the 1994 judgment for lack of jurisdiction under CPLR 5015(a)(4).
Clerks' judgments may nevertheless be vacated pursuant to CPLR 5015(a)(1) where thedefendant demonstrates both a reasonable excuse for the default and a potentially meritorious defense to the action (see Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673; see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822; Zanani v Schvimmer, 75 AD3d 546, 547; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313). The defendant failed to establish a reasonable excuse for his default since the only excuse he proffered was that he was not served with process. Moreover, we agree with the Supreme Court that the defendant also failed to establish a potentially meritorious defense to the action. Contrary to the defendant's contention that the legal services were rendered solely to his corporation, the documentary evidence, including the invoices for legal fees incurred and the pleadings in the earlier landlord-tenant litigations, establish that the defendant was an individually named party in those actions who received individualized legal services. Other issues that the defendant raises as to the invoices themselves speak to the specific amount of damages, and not to liability or to his default in the 1993 action.
The defendant's argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal...
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