United States District Court, S.D. New York
RL 900 PARK LLC, a Florida limited liability company, Plaintiff,
SIMONE ENDER, INDIVUDUALLY AND AS THE EXECURTIX OF THE ESTATE OF PAUL ANTHONY ENDER; MONIQUE ENDER SILBERMAN; BRIGETTE LAING; DANUTA MARYNIAK, AS GUARDIAN FOR EMELYE ENDER; JACK MANN; JOAN MANN; UNKNOWN TENANT IN POSSESSION #1; and UNKNOWN TENANT IN POSSESSION #2, Defendants.
ANALISA TORRES UNITED STATES DISTRICT JUDGE.
Defendants in this case, Simone Ender and Monique Ender
Silberman, move for an order vacating the Clerk's
certificate of default. ECF No. 79. For the reasons stated
below, that motion is DENIED.
RL 900 Park LLC, alleges breach of a promissory note seemed
by a mortgage and a security interest in personal property,
and seeks damages for the breach as well as foreclosure on
the mortgage and security interest. Compl. ¶¶
33-52, ECF No. 12. Plaintiff alleges the following underlying
facts, which the Court accepts as true for the purposes of
this motion. On February 21, 2018, Defendant Simone Ender
executed a 1.5 million dollar promissory note in favor of a
Florida lender. Compl. ¶ 11-12. The note was secured by
a mortgage on a condominium unit at 900 Park Avenue in
Manhattan (the “Apartment”) and certain property
associated with the Apartment, and by a security interest in
personal property owned by Ender. Compl. ¶¶ 12-17.
The note and mortgage were later assigned to Plaintiff.
Compl. ¶ 18-19. Defendants Monique Ender Silberman and
Brigitte Laing, Ender's daughters, and Danuta Maryniak,
who is the guardian of a child related to Ender's
deceased husband, have claimed or may in the future claim
some interest in the Apartment. Compl. ¶¶ 6-8.
Defendants Jack and Joan Mann, and potentially others, are
tenants in possession of the Apartment. Compl. ¶¶
9-10. Plaintiff has settled its claim against the Manns, ECF
No. 95, and with Maryniak, ECF No. 78; the claims remaining
from the original complaint are against Ender, Silberman, and
Laing. A certificate of default was entered against Laing on
March 11, 2019, ECF No. 71; she has not entered an appearance
since then, and did not join in the instant motion to vacate
the certificate of default.
was personally served with the initial complaint in this case
on December 27, 2018, ECF No. 30, and Silberman was
personally served on December 31, 2017, ECF No. 33. Neither
Defendant answered or otherwise responded within 21 days, as
required by Rule 12(a)(1)(A) of the Federal Rules of Civil
Procedure. Accordingly, on January 25, 2019, Plaintiff sought
the entry of a certificate of default against Ender, ECF No.
41, and on February 5, 2019, sought the entry of a
certificate of default against Silberman, ECF No. 46. The
Clerk of Court entered certificates of default against both
Defendants. ECF Nos. 42, 47. On March 22, 2019, counsel for
Ender and Silberman appeared in this action, ECF No. 72, and
sought leave to move to vacate the certificates of default.
ECF No. 73. On April 16, 2019, pursuant to this Court's
order, Defendants moved to vacate the default. ECF No. 79.
August 1, 2019, counsel for Defendants moved to withdraw. ECF
No. 106. On September 23, 2019, the Honorable Kevin Nathaniel
Fox granted that motion, and ordered Ender and Silberman to
inform the Court by October 10, 2019, as to whether they had
retained new counsel or intended to proceed pro se.
ECF No. 126. Neither Defendant complied. On October 21, 2019,
this Court again directed Defendants Simone Ender and Monique
Ender Silberman to advise the Court by November 8, 2019,
whether they had retained new counsel or intended to proceed
pro se. ECF No. 131. On October 28, 2019, the Court
extended the deadline to November 15, 2019. ECF No. 133.
Plaintiff personally served Ender with the Court's first
order on October 28, 2019, ECF No. 134, and its second order
on November 4, 2019, ECF No. 135, and personally served
Silberman with both orders on October 25, 2019. ECF No. 136.
Neither Ender nor Silberman has informed the Court that she
has retained counsel or otherwise communicated with the Court
since Judge Fox granted the motion to withdraw more than two
Rule 55(a) of the Federal Rules of Civil Procedure,
‘when a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend . .
., the clerk must enter the party's default.' The
entry of default is therefore not discretionary.”
Bricklayers & Allied Craftworkers Local 2, Albany,
N.Y. Pension Fund v. Moulton Masonry & Const., LLC,
779 F.3d 182, 186 (2d Cir. 2015) (alteration omitted)
(quoting Fed.R.Civ.P. 55(a)). Once default is entered, Rule
55(c) provides that “[t]he court may set aside an entry
of default for good cause.” The standard for good cause
“requires a court to weigh (1) the willfulness of
default, (2) the existence of any meritorious defenses, and
(3) prejudice to the non-defaulting party.”
Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444,
455 (2d Cir. 2013).
course of this litigation demonstrates that Defendants'
default was willful. The Second Circuit has
“interpreted ‘willfulness,' in the context of
a default, to refer to conduct that is more than merely
negligent or careless, but is instead egregious and not
satisfactorily explained.” Bricklayers, 779
F.3d at 186 (internal citation marks and citation omitted).
Default is willful where defendants demonstrate “a
clear pattern of willful and deliberate disregard for the
litigation.” Id. at 187. This standard is
satisfied where a defendant “received the complaint,
the court's orders, or the notice of default judgment,
” but does not respond, and does not show “that
his non-compliance was due to circumstances beyond his
control.” Guggenheim Capital, 722 F.3d at 455.
here have repeatedly demonstrated deliberate disregard for
this litigation, both before and after the initial entry of
default. Defendants acknowledge that Ender was served with
the complaint on December 27, 2018, and Silberman was served
on December 31, 2017. Def. Mem. at 3, ECF No. 71-12.
Defendants' counsel at the time the motion to vacate was
filed-Adam Frank, of the law firm Brody, O'Connor &
O'Connor-attested that he “was originally contacted
by Defendants Simone Ender and Monique Ender Silberman
regarding the instant action in or around early December
2018, prior to the filing of the Summons and Complaint by the
Plaintiff, ” but ultimately was not retained. ECF No.
79-1 ¶ 4. In an affidavit, Silberman also attests that
she “first became aware of the prospect of the instant
action in or around early December 2018, and that “[a]t
such time, she had preliminary conversations” with
Brody, O'Connor & O'Connor, but did not retain
them. Silberman Decl. ¶ 2, ECF No. 79-11. Silberman
asserts that she and Ender retained a different law firm,
which “assured” them that “it would appear
in the instant action and respond to the Plaintiff's
Summons and Complaint.” Id. ¶ 3. She
further asserts that she did not find out until February 2019
that the other firm had not appeared, and in March 2019 she
and Ender sought to retain new counsel and moved to vacate
the default. Id. ¶¶ 5-6.
questions the veracity of Silberman's account, noting
that Defendants have not identified the prior law firm or
provided evidence that they retained such a firm. Pl. Mem. at
7, ECF No. 80. Even Defendants' version of events,
however, supports a finding that they willfully defaulted. By
their own account, Defendants had retained counsel in this
matter by early January 2019, and their counsel had informed
them that he or she would timely answer the complaint.
Nonetheless, that counsel did not respond to the complaint,
and Defendants have presented no evidence that the lack of
response was due to “circumstances beyond his [or her]
control.” Guggenheim Capital, 722 F.3d at 455.
“[n]ormally, the conduct of an attorney is imputed to
his client, ” and “in the context of a default
judgment” the Second Circuit has “rather
consistently refused to relieve a client of the burdens of a
final judgment entered against him due to the mistake or
omission of his attorney.” S.E.C. v. McNulty,
137 F.3d 732, 739 (2d Cir. 1998) (internal quotation marks
and citations omitted). “In sum, where the
attorney's conduct has been found to be willful, the
willfulness will be imputed to the party himself where he
makes no showing that he has made any attempt to monitor
counsel's handling of the lawsuit.” Id. at
740. Defendants here have not shown that they attempted to
monitor their counsel's handling of the lawsuit. Despite
Defendants' being aware, by virtue of being personally
served with the summons and complaint, that an answer was due
in late January, there is no evidence that they checked in
with their attorney around that time, or otherwise kept
abreast of the litigation. Indeed, even in February 2019,
when Defendants claim that they first discovered their
counsel had not entered an appearance or filed an answer,
they waited another month before retaining new counsel.
Accordingly, the willfulness of Defendants' counsel
should be imputed to Defendants, and their “argument
that they should not suffer the consequences of their
attorney's failure to answer the complaint . . . lacks
merit.” United States v. Goldstein, 216
Fed.Appx. 62, 64 (2d Cir. 2007); see Belizaire v. RAV
Investigative & Sec. Servs., Ltd., 310 F.R.D. 100,
105 (S.D.N.Y. 2015) (imputing willfulness to defendant that
“fail[ed] to offer evidence of its own diligence in
monitoring this case, aside from delivering the initial
[c]omplaint to its counsel”); Hernandez v.
Fuller, No. 06 Civ. 1405, 2007 WL 3274693, at *2
(S.D.N.Y. Oct. 29, 2007) (“In view of the fact that
[defendants] admit receipt of the summons and complaint, and
thus knew that a response was due within 20 days, yet do not
claim to have done anything to ensure that the [their
attorney] was following up on the matter on their behalf,
they have failed to show even minimal due diligence.”).
Defendants' appearance through counsel in March 2019 had
marked the end of their disregard for this litigation, the
Court might hesitate to find that their default was willful,
given “the strong preference for resolving disputes on
the merits.” Am. All. Ins. Co. v. Eagle Ins.
Co., 92 F.3d 57, 62 (2d Cir. 1996). But Defendants'
conduct following the withdrawal of counsel unequivocally
demonstrates “a clear pattern of willful and deliberate
disregard for the litigation, ” Bricklayers,
779 F.3d at 186, and compels a finding of willfulness. Since
their counsel withdrew, Defendants have repeatedly been
ordered to inform the Court if they were retaining new
counsel or intended to proceed pro se. See
ECF Nos. 126, 131, 133. Over the course of three months,
despite numerous opportunities, they have not responded. This
disregard for the Court's orders occurred even though the
Court expressly warned Defendants that failure to comply
“may be independent grounds for deeming them to be in
default.” ECF No. 131; see ECF No. 133
(“Defendants are again reminded that failure to comply
with this order may be grounds to hold them in
default.”). The Court, therefore, concludes that
Defendants' default is plainly willful. See Eagle
Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d
Cir. 1991) (“Having determined that the district court
properly ordered Eagle to appear through counsel, it was
appropriate to enter a default judgment when Eagle willfully
disregarded the district court's order.”);
Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d
114, 123-24 (E.D.N.Y. ...