| F & K Supply, Inc. v Shean |
| 2008 NY Slip Op 09311 [56 AD3d 1076] |
| November 26, 2008 |
| Appellate Division, Third Department |
| F & K Supply, Inc., Doing Business as Fowler & Keith SupplyCompany, Respondent, v Matthew Shean, Appellant. |
—[*1] Ganz, Wolkenbreit & Friedman, L.L.P., Albany (Robert E. Ganz of counsel), forrespondent.
Carpinello, J. Appeal from an order of the County Court of Ulster County (Work, J.), enteredJune 20, 2007, which affirmed an order of the City Court of the City of Kingston denyingdefendant's motion to vacate a default judgment entered against him.
Plaintiff commenced this small claims action in 1992 for moneys due on an account stated.Many delays thereafter occurred in the case, only some of which are explained in the record nowbefore this Court. Suffice it to say, the case languished for five years following a May 1993decision denying plaintiff summary judgment and then languished further for another seven yearsfollowing an April 1998 letter from the City Court Clerk indicating that it was being referred toarbitration. For unknown reasons, the case was never actually referred to arbitration andapparently neither party made any attempt to follow up on it for some years. Ultimately, in 2005,plaintiff's assignee took steps to resurrect it.
By letter dated July 18, 2005, City Court advised attorneys for both parties that the case wasbeing set down for a September 13, 2005 pretrial conference and that any "Change of Attorneysshould be brought up to date." Defendant's attorney of record appeared at the conference withoutdefendant. What actually transpired at this untranscribed conference is somewhat in dispute.According to defendant's attorney, he informed City Court at the conference that he no longerrepresented defendant. According to plaintiff's attorney, defense [*2]counsel merely indicated that he had "not spoken with his client inseveral years" and was considering making a motion to dismiss the action given the passage oftime.[FN*]
Despite any discrepancy in what transpired at that conference, it remains undisputed that noformal motion to be relieved as counsel was made at any time. It also remains undisputed that, atthat conference, City Court set the matter down for a December 6, 2005 trial and then followedup with a written confirmation to the attorneys for both parties. At no time did defendant'sattorney take any steps to be relieved as counsel, dismiss the action or adjourn the trial. Whenneither defendant nor his attorney appeared at the scheduled trial, it proceeded in their absence.
One day later, a proposed judgment was submitted to City Court on notice to defendant'sattorney. No objection was raised. Six weeks later, again on notice to defendant's attorney,plaintiff's attorney requested City Court to sign and enter the default judgment. In this letter,plaintiff's counsel confirmed that "[t]here has been no objection or other response from thedefendant." The signed and entered judgment was then served on both defendant and hisattorney. Eight months later, defendant's attorney moved to vacate the default judgment. Findingno reasonable excuse for the default, City Court denied the motion. On appeal, County Courtaffirmed, agreeing that defendant failed to provide a reasonable excuse for the default and addingthat he also failed to demonstrate a meritorious defense. Defendant now appeals pro se.
A motion to vacate a default judgment may be granted where there is a reasonable excuse forthe default and a meritorious defense (see CPLR 5015 [a] [1]; see e.g. Matter of Womack v Rosario,50 AD3d 1212, 1213 [2008]; Kurlander v Willie, 45 AD3d 1006, 1007 [2007]). Moreover, thedecision to vacate a default judgment is addressed to the sound discretion of the court (seee.g. Kurlander v Willie, 45 AD3d at 1007; Busone v Bellevue Maternity Hosp., 266AD2d 665, 667 [1999]). Here, no explanation was given by defendant's attorney for the failure toappear at the scheduled trial despite notice of same. Nor was any explanation given for thesubsequent failure to object to the proposed judgment prior to its entry. We are therefore unableto conclude that County Court abused its discretion in affirming the decision to deny the motionon the ground that defendant failed to establish a reasonable excuse for the default (seeCPLR 5015 [a] [1]; Kurlander v Willie, 45 AD3d at 1007; Kranenburg v Butwell, 34 AD3d1005, 1006 [2006]). In any event, even assuming that defense counsel's claimeddisavowment of continued representation of defendant somehow justified his failure to act andthus provided a reasonable excuse for the default, no proof of a meritorious defense was offeredin support of the motion thereby providing an alternative ground upon which to deny it (cf. Wade v Village of Whitehall, 46AD3d 1302 [2007]).
This Court, however, has "inherent power to review issues addressed to the excessiveness orappropriateness of awards granted upon default" (Guariglia v Price Chopper Operating Co., Inc., 13 AD3d 1028,1030 [2004]; see Quigley v Coco'sWater CafÉ, Inc., 43 AD3d 1132, 1133 [2007]; Neuman v Greenblatt, 260AD2d 616, 617 [1999]; Cervino v Konsker, 91 AD2d 249, 252-253 [1983], appealdismissed 59 NY2d 761 [1983]). In reviewing the issue here, we find that the imposition ofinterest for the 12 years of unexplained inactivity is excessive and inappropriate under theseunique circumstances. Thus, the judgment must be reduced [*3]accordingly.
Mercure, J.P., Spain, Kane and Kavanagh, JJ., concur. Ordered that the order is modified, onthe facts, without costs, by vacating the interest awarded on the judgment; matter remitted to theCounty Court of Ulster County for recalculation of interest; and, as so modified, affirmed.
Footnote *: Not insignificantly, according toCity Court, its "notes [from the conference] indicate that [d]efendant's attorney indicated hemight be making a motion to dismiss."