Chevalier v. 368 E. 148th Street Associates, LLC ( 2011 )

McGuire, J.,

dissents in a memorandum as follows: I dissent and would reverse the order granting Notias’s motion to renew and, upon renewal, vacating a prior order dismissing Notias’s third-party complaint against Triboro and denying Triboro’s cross motion for summary judgment dismissing the third-party complaint as against it. I would not reach the question of whether a proper basis for renewal was established as Notias did not in any event establish a reasonable excuse for its default.

As Notias defaulted with respect to Triboro’s cross motion (another defendant in the main action had moved for summary judgment dismissing the complaint against it) to dismiss Notias’s third-party complaint as against it, Supreme Court granted the cross motion and dismissed the third-party complaint against Triboro. Thereafter, in moving, inter alia, to vacate the default, Notias was required to establish both a reasonable excuse for its default and that it had potentially meritorious claims against Triboro (JP Morgan Chase Bank, N.A. v Bruno, 57 AD3d 362 [2008]). Apparently, but understandably, the majority is unwilling to go so far as to say that the proffered excuse is reasonable and instead says only that the “excuses [sic] . . . are sufficient because any law office failure was inadvertent.” But the inadvertence of a failure to do something is not sufficient to make the failure reasonable. If law office failure constitutes a reasonable excuse whenever it is inadvertent, virtually all law office failures will pass muster. By setting the bar too low, the majority invites rather than discourages lax practice. Moreover, the majority is wrong for another reason: in opposing Notias’s motion to vacate the default, Triboro blew Notias’s excuse to smithereens with a factual assertion that Notias made no attempt to deny in its reply submission.

Supreme Court granted Triboro’s cross motion by a decision and order dated June 3, 2009, almost two months after the original return date of the motion. The following constitutes the excuse offered by Notias’s attorney: “As the ‘Cross-Motion’ received by this office was returnable on Good Friday, and as E-Law did not indicate that the Motion was pending before the Court, your affirmant believed that the Motion had not been accepted by the Court, and expected an Amended Notice of Cross Motion with a new return date.” As this belief is unreasonable, the “excuse” is, too. Good Friday is not, of course, a legal holiday and Notias has never attempted to explain the relevance of this apparent makeweight. The critical facts are that Notias was served with the cross motion and never contacted opposing counsel. Other than check E-Law at some unspecified date, Notias did nothing. It is manifestly irresponsible for an attorney to do nothing after being served with a motion simply because the motion does not show up on E-Law. At best, this was the kind of “sloppy practice” the Court of Appeals decried in Brill v City of New York (2 NY3d 648, 653 [2004]). Of course, trial courts have some discretion in determining whether an excuse is reasonable and their determinations should not be made in a vacuum. Nonetheless, some “excuses” just will not do (see Okun v Tanners, 11 NY3d 762 [2008]).

Nor did Supreme Court ever pronounce this excuse a reasonable one. To the contrary, in its July 13, 2009 decision and order Supreme Court had this to say about Notias’s excuse: “it remains unclear . . . how Notias could properly wait, uncurious, as eight weeks passed from the initial return date of the cross motion, which Notias should have suspected was being rescheduled. As Triboro points out, no inquiries were made to it by Notias.” Like the majority, Supreme Court overlooked the default because of the public policy in favor of resolving disputes on the merits. This public policy does not negate the requirement of a “reasonable excuse.” Although it should encourage courts to be forgiving when deciding whether an excuse is reasonable, it does not justify setting the bar so low as to countenance torpor.

In any event, Notias’s claimed excuse was blown apart by the affirmation submitted by Triboro’s attorney in opposition to Notias’s motion to vacate the default. Counsel averred as follows: “Although [Triboro] initially noticed its cross motion for April 10, 2009, it subsequently sent a second notice indicating that the cross motion was returnable on April 14, 2009 .... This Court also received that second notice, along with the affidavit indicating that it had been served on Notias’ counsel.”

Obviously, if Notias received such a second notice, it would have no excuse at all. Although one of Notias’ attorneys submitted a reply affirmation, it did not deny Triboro’s assertion that it had sent a second notice. Nor did it deny Triboro’s assertion that the court had received the second notice and an affidavit of service. Rather, Notias simply ignored these assertions. Under these circumstances, Notias should be deemed to have admitted these factual assertions (SportsChannel Assoc. v Sterling Mets, L.P., 25 AD3d 314, 315 [2006]). Although the majority apparently disagrees, it provides nothing by way of an explanation of why Notias should not be deemed to have admitted the assertions. In its brief, Notias asserts that its predecessor counsel “claimed that his office never received Triboro’s amended notice of cross motion and consequently never, learned of the new return date for the motion.” In fact, however, predecessor counsel never made any such claim.^*

Although Supreme Court noted Triboro’s assertion in its opposition that Notias had been served with a second notice, it concluded that the assertion was “not determinative” because Triboro had not also provided a copy of the affidavit of service of the second notice. I think the opposite conclusion is the only reasonable one. As Notias did nothing to deny an assertion it easily could deny, its failure to do anything should not be excused on the ground that Triboro could have done even more. Moreover, although Notias bore the burden of establishing a reasonable excuse, Supreme Court’s reasoning effectively put the burden on Triboro to negate the excuse. In this regard, I note that Supreme Court did not purport to contradict Triboro’s assertion that the court had received an affidavit of service of the second notice.

The majority does not dispute that if Notias received the second notice it would have no excuse at all. Nor does it take issue with me on any of the other points I make in the prior paragraph. Unfortunately for the rule of law, the majority ignores all these points.

* In a footnote, the majority states that “the validity of Triboro’s cross motion is questionable because it was untimely pursuant to CPLR 2215, which requires a cross movant to serve papers ‘[a]t least three days prior to the time at which the motion is noticed to be heard.’ ” What is questionable, however, is whether Triboro’s motion is a “cross” motion to which CPLR 2215 is applicable. Although denominated as a “cross” motion by Triboro, the motion was made returnable on April 10, 2009, not on March 25th, the day 368 E. 148th Street Associate’s motion was noticed to be heard, and it did not request any relief against the original movant, 368 E. 148th Street Associates. As is evident, Notias had ample time to respond. Why the majority raises this issue of form when Notias does not is unclear.