Millard v. WycheMillard v. Wyche
Ronald Paul Hart, P.C., New York, NY, for appellant.
Carro, Carro & Mitchell, LLP, New York, NY (John S. Carro of counsel), for respondent.
DECISION & ORDER
In an action pursuant to
ORDERED that the order dated March 13, 2017, is reversed, on the facts and in the exercise of discretion, with costs, the motion of the defendant Denise Miner pursuant to
In this action, which was commenced in October 2010, the plaintiff seeks, pursuant to
The plaintiff alleged that in 1995, she moved into the property, and, since May 1996, she has lived continuously at the property and has paid all the expenses and taxes for the property. The plaintiff alleged that in 1997, she changed the locks at the premises and denied the defendants permission to use the premises “in any manner.”
In her verified answer, the defendant denied the material allegations in the complaint and asserted a counterclaim seeking the imposition of a constructive trust. She alleged that, at the time оf her mother‘s death, she was an “under-aged minor,” and she had a confidential or fiduciary relationship with the plaintiff by virtue of their familial relationship. She alleged that she permitted the plaintiff to maintain residence at the property in exchange for the plaintiff‘s promise to preserve, protect, and maintain the property for her benefit.
After nearly six years of litigation, which included discovery and multiple court conferenсes, the parties were scheduled to appear on February 2, 2016, in the Jury Coordinating Part (hereinafter JCP). On that date, the defendant and her then cоunsel failed to appear, and the Supreme Court issued an order which, in effect, struck the defendant‘s answer and referred the matter for an inquest. Thereafter, the defendant moved to vacate her default in failing to appear for the JCP conference and to restore the matter to the trial calendar. However, on May 6, 2016, which was the return date on her own motion, the defendant‘s then counsel again failed to apрear. The court denied the defendant‘s motion on default.
Thereafter, the defendant, who had retained new counsel, again moved to vaсate her default in appearing for the JCP conference scheduled for February 2, 2016, and to restore the matter to the trial calendar. In аn order dated March 13, 2017, the Supreme Court denied the defendant‘s motion. The defendant appeals.
A defendant seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for the default and a potеntially meritorious defense (see
Here, in support of her motion to vacate her default, the defendant submitted her affidavit and an affirmation of her former сounsel. In her affirmation, former counsel explained that on January 25, 2016, there had been a JCP conference scheduled. However, due to a snowstorm, her train from Maryland to New York was canceled. The defendant submitted a copy of the train cancellation notice. Former counsel further explained that she contacted the defendant, the plaintiff‘s counsel, and a court clerk on the morning of the conferenсe to advise them that she was not going to be able to make the appearance. According to counsel, the clerk told her over the telephone that the JCP conference would be adjourned to February 3, 2016. The defendant averred that on January 25, 2016, she appeared in the courtroom and was likewise told that the JCP conference had been adjourned to February 3, 2016. Both the defendant and her former counsel stated that they appeared in the JCP on February 3, 2016, only to learn that the conference had been scheduled for February 2, 2016. Under these circumstances, the defendant provided a sufficiently detailed explanation for her failure to appear at the JCP conference schеduled for February 2, 2016. Additionally, former counsel also explained in her affirmation her failure to appear on the return date of the prior motion to vacate the defendant‘s default.
Considering the lengthy history of litigation in this case, the defendant‘s two consecutive missed calendar aрpearances do
Moreover, contrary tо the Supreme Court‘s determination, the defendant demonstrated the existence of a potentially meritorious defense to the plaintiff‘s claim of adverse possession by submitting copies of the pleadings, including her verified answer, which asserted, in effect, that the plaintiff‘s use of the proрerty was permissive (see Jennings v Queens Tribune Publs., LLC, 101 AD3d 1086, 1087; Harris v City of New York, 30 AD3d 461, 465; Goldman v City of New York, 287 AD2d 482; see also Diaz v Mai Jin Yang, 148 AD3d 672, 673; Bratone v Conforti-Brown, 79 AD3d 955, 957-958).
Nevertheless, given the multiple calendar defaults by the defendant‘s former counsel, we deem it appropriate to direct the defendant to pay the plaintiff the sum of $1,000 (see Matter of Esposito, 57 AD3d at 895-896; Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650, 651-652).
AUSTIN, J.P., ROMAN, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court