| Piatt v Horsley |
| 2013 NY Slip Op 05388 [108 AD3d 1188] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| Scott J. Piatt, P.A., Individually and Scott J. Piatt, DoingBusiness as Aesthetic Solutions and Summit Healthcare, Respondent, v Ross A.Horsley, M.D., Defendant, and Paul B. Kirsch, M.D.,Appellant. |
—[*1] Amigone Sanchez & Mattrey, LLP, Buffalo (Jack M. Sanchez of counsel) and JamesF. Allen, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Allegany County (Thomas P. Brown,A.J.), entered February 10, 2012. The order, insofar as appealed from, denied that part ofthe motion of defendant Paul B. Kirsch, M.D., to vacate a default judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversedin the exercise of discretion without costs and that part of the motion seeking vacatur ofthe judgment entered August 6, 2010 is granted upon condition that defendant Paul B.Kirsch, M.D. shall serve an answer within 20 days of service of a copy of the order ofthis Court with notice of entry.
Memorandum: Paul B. Kirsch, M.D. (defendant), as limited by his brief, appealsfrom an order denying that part of his motion seeking to vacate the default judgmententered against him. At the outset, we note that Supreme Court's failure to rule on thatpart of the motion seeking dismissal of the complaint against defendant is deemed adenial thereof (see Matijiw vNew York Cent. Mut. Fire Ins. Co., 15 AD3d 875, 876 [2005]; Brown vU.S. Vanadium Corp., 198 AD2d 863, 864 [1993]). As noted, however, defendant'sbrief is limited to that part of his motion seeking to vacate the default judgment. On themerits, we agree with plaintiff that defendant failed to establish that he did not receiveactual notice of the summons and complaint as required by CPLR 317, and thatdefendant failed to establish a reasonable excuse for his default under CPLR 5015 (a)(1). Nevertheless, under the circumstances of this case, we exercise our broaddiscretionary power to vacate the default judgment (see Woodson v Mendon LeasingCorp., 100 NY2d 62, 68 [2003]; Matter of County of Ontario [Middlebrook], 59 AD3d1065, 1065 [2009]). The court granted a default judgment on the first, fourth andfifth causes of action sounding in, respectively, conspiracy and conversion, breach of anemployment agreement, and fraud and defamation. The court also awarded damages of$250,000, $953,011.44 and $1,000,000, respectively, on those causes of action.First, with respect to the first cause of action, we note that "New York does notrecognize [*2]civil conspiracy to commit a tort as anindependent cause of action" (Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398,1400 [2012] [internal quotation marks omitted]). Second, we question the reasonablenessof the court's award of damages, particularly in light of the fact that the record does notreflect how the court determined those awards. Third, given the lack of detail in thecomplaint (see generally CPLR 3016 [a], [b]), we also question plaintiff'sentitlement to judgment with respect to the alleged fraud and defamation. We thereforeexercise our "inherent authority to vacate the default judgment 'for sufficient reason andin the interests of substantial justice' " (Middlebrook, 59 AD3d at 1065, quotingWoodson, 100 NY2d at 68), and we grant that part of defendant's motion seekingto vacate the default judgment entered against him upon condition that he shall serve ananswer within 20 days of service of a copy of the order of this Court with notice of entry.Present—Centra, J.P., Fahey, Carni and Sconiers, JJ.