| 60 E. 9th St. Owners Corp. v Zihenni |
| 2013 NY Slip Op 07662 [111 AD3d 511] |
| November 19, 2013 |
| Appellate Division, First Department |
| 60 E. 9th St. Owners Corp., Respondent, v AlbertN. Zihenni, Appellant. |
—[*1] Smith, Buss & Jacobs, LLP, Yonkers (John J. Malley of counsel), forrespondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered September 28,2012, which denied defendant's motion to vacate an order striking his answer andcounterclaims for failure to appear at a scheduled conference, unanimously affirmed,with costs.
By order entered on November 22, 2011, the court granted a motion by defendant'sformer counsel to be relieved. The court directed service of a copy of the order upondefendant at his last known address by certified mail, return receipt requested. It furtherprovided that defendant was to appear with new counsel for a status conference to beheld on January 18, 2012 at 2:30 p.m. According to former counsel's affidavit of service,he served defendant on December 9, 2011 with a copy of the order and a notice directingdefendant to select substitute counsel and appear at the courtroom with said substitutecounsel "on January 18, 2011 [sic] at 2:30 p.m." The affidavit states that the order andnotice were served, as directed, upon defendant by certified mail, return receipt requestedand regular mail, in addition. This appeal is from the court's order denying defendant'smotion to vacate the January 18, 2012 calendar order striking defendant's answerpursuant to 22 NYCRR 202.27 upon defendant's failure to attend the status conference.
Defendant made the motion pursuant to CPLR 5015 (a) (1) on the ground ofexcusable default. A party seeking relief under CPLR 5015 (a) (1) must demonstrate areasonable excuse for his or her default and a meritorious claim or defense, as the casemay be (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]). In denying defendant's motion the court did not discuss the reasonableness ofhis excuse for missing the January 18, 2012 conference. Instead, the court's decision wasbased solely on a finding that a meritorious defense to plaintiff's claims was notdemonstrated. We address the issue of reasonable excuse at this time in the exercise ofthe coordinate authority we share with Supreme Court on all questions of law and fact(see e.g. Matter of State of New York v Ford Motor Co., 74 NY2d 495, 501[1989]).
Former counsel's affidavit of service raises a presumption that on December 9, 2011defendant was given notice of the January 18, 2012 conference by both certified mail andregular mail (see Engel v Lichterman, 62 NY2d 943, 944-945 [1984]).Defendant does not challenge the affidavit of service and, in fact, states that he believesformer counsel timely complied with the [*2]court'sorder. Defendant states that he never received notice of the certified mail although heconcedes that the envelope in which it was sent contains a notation of a December 12,2011 delivery. Defendant also acknowledges receipt of first-class mail from formercounsel but, without stating what was enclosed, defendant vaguely asserts that "the maildid not contain the materials sent by certified mail." In all, defendant's denial of receiptof former counsel's properly mailed notice is the only excuse he offers for his failure toattend the status conference. Such a denial is insufficient to overcome the presumption ofdelivery (see Matter of Futterman v New York State Div. of Hous. & CommunityRenewal, 264 AD2d 593, 595 [1st Dept 1999], lv dismissed, 94 NY2d 847[1999]). It is also insufficient as a reasonable excuse as a matter of law (see Deutsche Bank Natl. Trust Co.v Pietranico, 102 AD3d 724, 725 [2d Dept 2013]).[FN*]
Although we affirm the order entered below, we find that the motion court abused itsdiscretion in denying the motion on the basis of a failure to demonstrate a meritoriousdefense. On the contrary, defendant's answer, which he verified himself on the basis ofpersonal knowledge, sufficiently sets forth relevant evidentiary facts (see CPLR105 [u]; Salch v Paratore, 60 NY2d 851, 852-853 [1983]; Bethlehem SteelCorp. v Solow, 51 NY2d 870, 872 [1980]). Concur—Andrias, J.P., Friedman,Acosta, DeGrasse and Freedman, JJ.
Footnote *: Defendant claims onDecember 14, 2011, he spoke with former counsel who advised him that he had untilJanuary 18, 2012 to get new counsel. On the morning of January 18, 2012, defendantfiled a notice of his pro se appearance with a clerk at the IAS Trial Support Office.Defendant does not state whether he asked former counsel or the Trial Support clerk anyquestions about the status of his case. Such an inquiry would have certainly disclosedthat the status conference was scheduled for the afternoon of January 18, 2012.