Northern Source, LLC v Kousouros 2012 NY Slip Op 33203(U) February 22, 2012 Sup Ct, NY County Docket Number: /2008E Judge: Paul G.

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1 Nrthern Surce, LLC v Kusurs 2012 NY Slip Op 33203(U) February 22, 2012 Sup Ct, NY Cunty Dcket Number: /2008E Judge: Paul G. Feinman Republished frm New Yrk State Unified Curt System's E-Curts Service. Search E-Curts ( fr any additinal infrmatin n this case. This pinin is uncrrected and nt selected fr fficial publicatin.

2 [* FILED: 1] NEW YORK COUNTY CLERK 02/24/2012 INDEX NO /2008 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/24/2012., SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. IIAULG. FEINMAN PART R I I Index Number: /2008 NORTHERN SOURCE, LLC vs KOUSOUROS, JAMES Sequence Number: 004 :>}1 un 1:;7 Ii LI HUE? '.::=:~=-::--... _-.:-.=;;..._.. -=.: '-Ttiefllwing papers, numbere1~f""""""""'-i"tlwi'<>;er"'e 7.ri'PcRI~thl INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. mtin t/fr PAPERS NUMBERED - - z «w a:: e,:, wz u- ~~ 0... ;:)... "'0 OLL t-w OJ: wta::a:: a::0 ~LL W a:: >... ;:) LL t U w Q. w a:: w «u -z ~ 2 Answering Affidavits - Exhibits Replying Affidavits Crss-Mtin: 0 Yes 0 N Upn the freging papers, it is rdered that this mtin Dated: --?---1,1~~--~+-( A Check ne: ~ FINAL DISPOSITION J.S,C. CJ NON-FINAL DISPOSITION Check if apprpriate: [J DO NOT POST 0 REFERENCE SUBMIT ORDERI JUDG. 0 SETTLE ORDERI JUDG. Ntice f Mtinl Order t Shw Cause - Affidavits - Exhibits ::,

3 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART )( NORTHERN SOURCE, LLC, Plaintiffs, - against - Index N /2008E Mt. Seq. N. 004 DECISION AND ORDER JAMES KOUSOUROS, Defendant )( Fr the Plaintiff: Claude Castr & Assciates PLI.C By: Claude Castr, Esq. 355 Lexingtn Ave., ste New Yrk, NY (212) Papers cnsidered in review f this mtin t vacate Ntice f mtin, Castr affirmatin and annexed exhibits A - G Brenner affirmatin in ppsitin and annexed exhibits I - 15 Castr reply affirmatin in further supprt Fr Defendant: Law Firm f Allan Laurence Brenner By: Allan L. Brenner, Esq. 536 W. Penn St. Lng Beach, NY (516) E-file dcument number(s): PAUL G. FEINMAN, J.: Plaintiff, Nrthern Surce, LLC, mves t vacate the curt's rder, dated February 9,2010, and t restre this matter t the calendar fr reslutin n the merits. Defendant, James Kusurs, ppses. Fr the reasns prvided belw, plaintiffs mtin is denied. In this legal malpractice actin, plaintiffs mtin fr summary judgment was denied by anther justice f this curt in a decisin and rder, dated May 12,2009, and the parties were directed t appear fr a preliminary cnference n June 2,2009 (Nrthern Surce, LLC v Kusurs, Sup Ct, NY Cunty, May 18, 2009, Shulman, 1., index n /2008, mt. seq. n. 001). Accrding t plaintiffs attrney, thereafter, "as a result f certain disputes with its frmer cunsel, this matter was nt placed n the [t]rial [c]alendar fr reslutin n the merits...," and instead plaintiff s frmer cunsel, Wacthel & Masyr LLP, filed a mtin, dated July 1, 2009, t be relieved as cunsel. The affidavit f service filed with the mtin shws that it was served n bth

4 [* 3] plaintiff and defendant's attrney. That mtin was dispsed f by a shrt -fnn rder, dated August 17,2009, stating, "...it is rdered that this mtin is granted, n ppsitin. Settle rder prviding fr a 30 day stay" (see Nrthern Surce, LLC v Kusurs, Sup Ct, NY Cunty, Aug. 17,2009, Tlub, 1., index n /2008, mt. seq. n. 002). On September 20, 2009, defendant served a 90-day demand under CPLR 3216 directly t plaintiff, and nt Watchtel & Masyr. Subsequently, Watchel & Masyr filed a prpsed rder with ntice f settlement, dated January 5, 2010, t be presented fr settlement t the same justice that had granted its mtin t be relieved as cunsel in August f2009. Meanwhile, n February 9, 2010, this curt granted, n default, defendant's mtin t dismiss fr failure t resume prsecutin after service f a 90-day ntice (Nrthern Surce, LLC v Kusurs, Sup Ct, NY Cunty, Feb. 9, 2010, Feinman, J., index n /2008, mt. seq. n. 003). The curt "[]rdered, that upn prf f service f a cpy f this rder tgether with ntice f its entry upn plaintiff (nt plaintiff s fnner cunsel), the Clerk f Curt shall enter judgment dismissing this actin in its entirety, tgether with csts and disbursements" (id.). Subsequently, given that Justice Tlub has since retired, the prpsed rder that had been submitted by Wachtel & Masyr LLP n January 5, 2010, was presented t and signed by this curt n February 17,2010 (Dc. 30, Feb. 17,2010 rder). In ding s, the curt crssed-ut the prtin f the prpsed rder which had prvided fr a 30 day stay f all prceedings, stating, "[ s ]tay is stricken given that the decisin directing cunsel t settle rder was issued 8117/09 and the Curt already directed dismissal f this actin as abandned by rder dated 2/9/2010" (id. at 2). In the instant mtin, plaintiff seeks t vacate the curt's rder f February 9,2010, and the resulting judgment dismissing the actin. In supprt, plaintiff submits an affinnatin f its attrney, the pleadings, the mtin papers related t its prir mtin fr summary judgment and Wachtel & Masyr's mtin t be relieved as attrney, the August 17,2009 shrt-fnn rder, Wachtel & 2

5 [* 4] Masyr's ntice f settlement f rder, dated January 5, 2010, and a cpy f this curt's February 17, 2010 rder (Dcs ). It des nt, hwever, submit a cpy f the February 9, 2010 rder and resulting judgment that it nw seeks t vacate. Plaintiff claims that a number f errrs n the part f the curt in its prir actins with respect t this case. First, it claims that the curt shuld have declined t sign the prpsed rder submitted by Wachtel & Masyr in January f2010 as untimely, and, in any case, erred in striking the prtin f the prpsed rder prviding a 30 day stay, as required by the previusly-assigned justice's August 17,2009 rder and under CPLR 321 (c) (Dc. 31-1, Castr affirm. at ~ 9). Next, plaintiff argues that the curt, in its February 9, 2010 rder, erred in granting defendant's mtin t dismiss fr failure t prsecute n default because the mtin shuld have been stayed until Wachtel & Masyr's prpsed rder seeking t withdraw was settled and plaintiff was prvided with a 30 day stay t btain new cunsel (id. at ~ 10). It further cntends that Wachtel & Masyr was still plaintiffs attrney f recrd at the time the curt issued its rder n February 9, 2010, because the curt had nt yet signed the prpsed rder settling Wachtel & Masyr's mtin t withdraw as cunsel, and, as such, the curt's February 9 rder errneusly referred t Wachtel & Masyr as plaintiff s "frmer cunsel" and directly service f a cpy f the rder directly upn plaintiff (id. at ~~ 11, 13). Plaintiff adds that if Wachtel & Masyr ~as its "frmer cunsel" as f February 9, 2010, then plaintiff was entitled t a 30-day stay befre a default culd have been granted n the mtin t dismiss (id. at ~ 12). As a result f these errrs, plaintiff s attrney argues that plaintiff s rights were "severely prejudiced" because it was "utterly cnfused as t when its attrney f [r]ecrd was discharged and when it was deprived f the right t the statutrily mandated 30 day stay f all prceedings in rder t btain new cunsel t prtect its rights in this litigatin" (id. at ~ 14). Defendant argues that plaintiffs mtin is untimely pursuant t CPLR 5015 (a) (1), which 3

6 [* 5] requires a party seeking relief frm an rder r judgment t file a mtin t vacate within ne year after service f a cpy f the judgment r rder (Dc. 32, Brenner affirm. at ~ 15). It als claims that the mtin is defective because plaintiff fails t ffer any explanatin fr its delay f mre than a year in seeking t vacate the judgment. Further, defendant cntends that the recrd shws that plaintiff has nt diligently prsecuted this actin, claiming that plaintiff never cmplied with the directives set ut in the preliminary cnference rder, and referring t the exhibits submitted by Wachtel & Masyr in supprt f their mtin t be relieved as cunsel, which suggest that plaintiffs dispute with its frmer cunsel was based n a lack f cmmunicatin and plaintiffs failure t pay its legal fees (id. at ~ 19). In any case, they argue that plaintiff received ntice f all f the salient develpments, including Wachtel & Masyr's mtin t withdraw and the August 2009 granting that mtin, defendant's 90 day ntice and defendant's mtin t dismiss based n plaintiffs failure t respnd t the 90 day ntice and the curt's February 9 rder granting t~at mtin (id. at ~ 20). Finally, defendant claims that plaintiffs mtin papers fail t prvide sufficient prf f the merits f its underlying claims. A party seeking t vacate a judgment n the basis f excusable default must demnstrate bth a reasnable excuse and a meritrius defense (see Bensn Park Asscs., LLC v Herman, 73 AD3d 464, 465 [151 Dept 2010]). Assuming arguend that Wachtel & Masyr's mtin t withdraw was deemed abandned by virtue f their failure t settle rder within 60 days, then Wachtel & Masyr wuld have remained plaintiffs cunsel and defendant wuld have t serve dcuments upn them. This service was, in fact, made. thrugh the e-filing system. Accrding t the "case details" sectin f the e-filing page assciated with this actin, plaintiff is represented by Evan Weintraub f Wachtel & Masyr and D. Paul Martin f Claude Castr and Assciates PLLC. As such, Wachtel & Masyr has received electrnic ntificatins fr every dcument e-filed in this actin, even thse 4

7 [* 6] filed after their mtin t withdraw as cunsel was granted. This means that even thugh defendant's ntice f mtin t dismiss fr failure t prsecute the actin, which was e-filed in January f201 0, was addressed directly t plaintiff, Wachtel & Masyr received electrnic ntificatin f these filings. Thus, regardless f whether Wachtel & Masyr technically remained plaintiff s cunsel f recrd in this actin due t its failure t timely submit a prpsed settle rder as directed by the curt's rder granting Wachtel & Masyr's mtin t withdraw, plaintiffs default was nt excusable because bth plaintiff and its purprted cunsel had received ntice f the mtin t dismiss. Mrever, in supprt f the instant mtin, plaintiff relies slely upn the affirmatin f its present cunsel, wh lacks persnal knwledge f the facts surrunding plaintiffs default. Even if a reasnable excuse fr plaintiff s default had been shwn, plaintiff must als demnstrate the merits f its underlying claims in this actin (see Bensn Park Assc., LLC v Herman, 73 AD3d 464, 465 [PI Dept 2010]). Generally, the party seeking t vacate a judgment entered n its default must prvide an affidavit f merits frm either the party r smene else with first-hand knwledge (see Siegel, NY Prac 108). Plaintiff, hwever, submits nly an affirmatin f its present attrney, which has n prbative value because there is nthing t indicate that the attrney has any first-hand knwledge f the facts at issue in this case. Plaintiffs attrney des attach as an exhibit t his affirmatin cpies f an affidavit f Peter Aytug, dated Nvember 12, 2008, which was submitted in cnnectin with plaintiffs prir unsuccessful mtin fr summary judgment (Dc. 31-4, Aytug affid.). Nne f the exhibits referred t in the Aytug affidavit are included. Althugh plaintiff and Wachtel & Masyr had ntice f the curt's rder granting defendant's mtin t dismiss in February 20 I 0, plaintiff did nt mve t vacate within the ne-year perid prvided by CPLR 5015 (a) (1). Furthermre, plaintiff fails t prvide any explanatin fr this delay. 5

8 [* 7] In light f the abve, plaintiffs new attrney's fcus n the purprted defects f the curt's prir rders is unavailing. Plaintiff claims that "substantial errr was cmmitted" when plaintiff was "deprived n the statutrily mandated 30 day stay when its prir cunsel withdrew as cunsel frm this case...," that Wachtel & Masyr's mtin t withdraw must be deemed abandned as a matter f law since a prpsed rder with ntice f settlement was nt submitted within 60 days, and that defendant's mtin t dismiss was nt prperly served, "thereby depriving this [c]urt f jurisdictin" (Dc. 34, Castr reply affirm. at ~ 2). Hwever, nne f the "errrs" listed by plaintiff have any bearing n the fllwing undisputed facts: (1) plaintiff knew that its frmer cunsel, Wachtel & Masyr, was filing a mtin t withdraw as a result f plaintiffs failure t timely pay its legal fees and due t a lack f cmmunicatin; (2) n actins were taken in the 30-day perid after Wachtel & Masyr's mtin t withdraw were granted; (3) plaintiff was served with a 90-day and did nthing in respnse; (4) after expiratin f the 90-day perid, defendant mved t dismiss fr failure t prsecute, serving papers directly upn plaintiff and electrnically upn Wachtel & Masyr thrugh the e-filing system; (5) upn plaintiffs default, defendant's mtin was granted, directing defendant t serve plaintiff with a cpy f the rder and ntice f entry; (6) plaintiff was served pursuant t the curt's February 9, 2010 rder, and Wachtel & Masyr received electrnic ntificatin thrugh the e-filing system; and (7) ntwithstanding actual receipt f this rder, plaintiff tk n steps t vacate it until June f2011. Accrdingly, it is ORDERED that plaintiffs mtin t vacate the prir rder f this curt, dated February 9, 2010, is denied in its entirety. This cnstitutes the decisin and rder ft~e cu~..! Dated: February 22, 2012 New Yrk, New Yrk ~ --~~------,,~4---l,;}--~~ J.S.C. 6