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N.F. Gozo Corp., Appellant v. Gene Kiselman

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


December 7, 2012

N.F. GOZO CORP., APPELLANT, --
v.
GENE KISELMAN, GENE TSIRKIN AND 2500 CONEY ISLAND AVENUE ASSOCIATES, LLC, RESPONDENTS, -AND- WASHINGTON MUTUAL BANK, DEFENDANT.

Appeals from orders of the Civil Court of the City of New York, Kings County, entered February 25, 2011 (Margaret A. Pui Yee Chan, J.), and April 29, 2011 (Lisa S. Ottley, J.), and dated April 27, 2011 (Johnny Lee Baynes, J.), respectively. The order entered February 25, 2011, insofar as appealed from as limited by the brief, granted the branch of a motion by defendants Gene Kiselman, Gene Tsirkin and 2500 Coney Island Avenue Associates, LLC seeking leave to renew their prior motion to vacate a default judgment that had been entered against them and, upon renewal, granted the branch of the motion seeking to vacate the default judgment.

N.F. Gozo Corp. v Kiselman

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2012

PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ

The order entered April 29, 2011, insofar as appealed from, upon granting the branch of plaintiff's motion seeking leave to reargue its opposition to the renewal motion, adhered to the prior determination vacating the default judgment, and denied the branches of plaintiff's motion seeking an order directing defendants Gene Kiselman, Gene Tsirkin and 2500 Coney Island Avenue Associates, LLC to maintain an undertaking and for sanctions. The order entered April 27, 2011 denied plaintiff's motion for leave to reargue its opposition to the renewal motion.

ORDERED that the appeal from so much of the order entered February 25, 2011 as granted the motion by defendants Gene Kiselman, Gene Tsirkin and 2500 Coney Island Avenue Associates, LLC to vacate the default judgment is dismissed as that portion of the order was superseded by the order entered April 29, 2011; and it is further,

ORDERED that the appeal from the order entered April 27, 2011 is dismissed, as no appeal lies from an order denying reargument (see Lamacchia v Schwartz, 94 AD3d 712 [2012]); and it is further,

ORDERED that the order entered April 29, 2011, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover, among other things, the amount allegedly due on a contract to supply and install "stone blend." After defendants Gene Kiselman, Gene Tsirkin and 2500 Coney Island Avenue Associates, LLC (collectively defendants) failed to appear for trial on January 15, 2010, they moved to open their default, alleging a lack of notice to their attorney of the trial date. By order dated April 14, 2010, the Civil Court denied the motion on the ground that defendants had not demonstrated a reasonable excuse for the default. A default judgment was entered against defendants on July 26, 2010 in the principal sum of $16,722.25.

Thereafter, defendants moved for leave to reargue or renew their prior motion, asserting that counsel had never properly calendared the trial date. By order dated August 11, 2010, the Civil Court (Margaret A. Pui Yee Chan, J.) denied the motion. Defendants then moved for, among other things, leave to renew their prior motion to vacate the default judgment. In a supporting affirmation, Alan Sclar, the senior partner of the firm representing defendants, alleged that the default in appearing for trial was based upon a combination of the mental illness of the associate in his firm to whom the case had been assigned, and the illnesses of the associate's family members, which had ultimately resulted in the associate's inability to manage the cases that had been assigned to him. Although Sclar declined to name the associate in the moving papers, in order to protect the confidentiality of the associate's medical history, Sclar provided the Civil Court with an affidavit by the associate's treating psychiatrist for an in-camera inspection to establish that the associate was suffering from a serious and debilitating illness. In addition, defendant Gene Tsirkin alleged in his supporting affidavit as a meritorious defense that plaintiff had not done the work it had been hired to complete and that any work plaintiff did do was shoddy, resulting in someone else having to be hired to do the work. Plaintiff opposed the motion, arguing, among other things, that defendants had failed to demonstrate any grounds to justify the granting of defendants' renewal motion as defendants had not provided the court with a justifiable excuse for their failure to present the facts argued upon renewal in the initial motion. By order entered February 25, 2011, the Civil Court (Margaret A. Pui Yee Chan, J.) granted leave to renew and, upon renewal, vacated the default judgment, finding that defendants had established a reasonable excuse for the default in appearing at trial and a meritorious defense to the action.

Thereafter, plaintiff moved for leave to reargue its opposition to the renewal motion, for an order requiring defendants to maintain an undertaking, and for sanctions. In support of the motion, plaintiff's attorney argued, among other things, that the Civil Court had erred in granting the motion to vacate the default judgment based upon the unsupported allegations of the senior partner and an in-camera inspection of the affidavit of the treating physician, which affidavit counsel had not been afforded an opportunity to review, and that she had not had an opportunity to cross-examine the senior partner. Counsel further argued that the movants had fabricated an excuse in order to prevail on their motion to vacate the default judgment. In addition, plaintiff argued that an undertaking, which had been filed by defendants as a condition of an order of this court granting defendants' motion for a stay, should remain in full force and effect. Plaintiff's motion also sought sanctions on the ground that defendants' attorneys had displayed a repeated pattern of neglect in this case. By order dated April 21, 2011 and entered April 29, 2011, the Civil Court (Lisa S. Ottley, J.) granted leave to reargue and, upon reargument, adhered to the prior order, and further denied the branches of the motion seeking to require defendants to maintain the undertaking and for sanctions. The record also contains a separate order of the Civil Court (Johnny Lee Baynes, J.), dated April 27, 2011, denying a motion by plaintiff for reargument.

A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]). Illness and disabling personal problems of an attorney and his family, such as involved herein, are acceptable excuses for a default (see Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 AD3d 509 [2007]; Fine v Fine, 12 AD3d 399 [2004]). Plaintiff attempts to raise entirely new issues on reargument of its opposition to defendants' prior motion, claiming that it should have had an opportunity to review the psychiatrist's affidavit and cross-examine Sclar. However, "[r]eargument does not provide a party an opportunity to advance arguments different from those tendered on the original application" (Rubinstein v Goldman, 225 AD2d 328 [1996] [internal quotation marks and citation omitted]; see Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398 [2012]).

We have reviewed plaintiff's remaining contentions and find them to be without merit.

Accordingly, the order entered April 29, 2011, insofar as appealed from, is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur. Decision Date: December 07, 2012

20121207

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