Preview
FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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In the Matter of ALLAN GOETZ,
Petitioner, AFFIRMATION IN SUPPORT
For Judgment Pursuant to Article 78
of the Civil Practice Law and Rules, Index No. 607311/2023
-against-
WYANDANCH VOLUNTEER FIRE COMPANY, INC.
and TOWN OF BABYLON,
Respondents.
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FRANK M. SCALERA, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1. I am the attorney for Respondent WYANDANCH VOLUNTEER FIRE
COMPANY, INC., in the above-entitled action, and am familiar with the facts and circumstances
herein.
2. This affirmation is submitted in support of the within Order to Show Cause which
seeks an Order (1) excusing the Respondent WYANDANCH VOLUNTEER FIRE COMPANY,
INC.’s, default for failing to appear in court and vacating the Order/Judgment entered against the
Respondent on June 13, 2023, (2) restoring the within action to the active calendar, (3) allowing
Respondent’s previously filed motion to dismiss to be heard and decided, and (4) for such other
and further relief as this Court deems just and proper.
3. This special proceeding involves efforts by the Petitioner, Allan Goetz, to restore
him to active membership in the Wyandanch Volunteer Fire Company following his dismissal
from active membership because of disciplinary action.
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4. Following service of the Petition, Petitioner’s counsel consented to an
adjournment of the Petition from May 1, 2023 to June 1, 2023. See NYSCEF No. 12. The Court
moved the return date to June 5, 2023 based on its motion calendar practice.
5. Thereafter, Petitioner consented to a second adjournment of the Petition to June
12, 2023. See NYSCEF No. 13. I spoke with Petitioner’s counsel regarding this adjournment
request, Petitioner’s counsel consented, and only asked for a week or so to respond to
Respondent’s filing. I consented to Petitioner’s counsel’s request for additional time to respond.
6. On June 12, 2023, Respondent filed a Notice of Motion with supporting
documents seeking dismissal of the proceeding pursuant to CPLR 3211(a)(7) and 7804(f). See
NYSCEF No. 14.
BASIS OF THE MOTION
7. Defendant respectfully submits that the Judgment/Order of this Court should be
vacated as Respondent appeared and filed its motion to dismiss, and that there is an excusable
default and that a meritorious defense exists with regard to Petition.
8. CPLR § 5015 is the main provision allowing for the vacatur of judgments and
orders. This statute provides several grounds for seeking such relief, the following subdivision
of which is applicable herein:
(a) On motion. [t]he court which rendered a judgment or order may
relieve a party from it upon such terms as may be just, on motion
of any interested person with such notice as the court may direct,
upon the ground of:
1. excusable default…
9. There is a strong public policy as well as the preference of the courts favoring the
resolution of cases on the merits rather than on default. Robles v. Grace Episcopal Church, 192
A.D.2d 515 (2d Dep’t. 1993); Balint v. Marine Midland Bank, N.A., 112 A.D.2d 1023 (2d Dep’t.
1985); DFI Communications, Inc. v. Golden Penn Theatre Ticket Service, 87 A.D.2d 778 (1st
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Dep’t. 1982); Bishop v. Galasso, 67 A.D.2d 753 (3d Dep’t. 1979) (law favors resolution of cases
on the merits and therefore courts are liberal in opening default).
10. Significantly, even when none of the statutory conditions set forth for relief from
judgment or order have been met pursuant to CPLR 5015, a trial court still has the inherent
authority to vacate a default in the interests of justice. Lounsbury v. Kiehl, 255 A.D.2d 774, (3d
Dept. 1998).
11. In furtherance of the above-mentioned public policy, a default will be vacated
upon the proper showing of a meritorious claim/defense and reasonable excuse for the default.
Tolliver v. County of Nassau, 231 A.D.2d 708 (2d Dept. 1996); Goldstein Affiliates, Inc. v. Lent
Art Knitting Corp., 75 A.D.2d 551 (1st Dep’t 1980); Glass v. Jamabeck Properties, Inc., 73
A.D.2d 106, (2d Dept. 1980). In addition, the court may consider such factors as the extent of
the delay, the prejudice to the non-defaulting party, and any evidence of lack of willfulness or
intent to default. Arred v. Enterprises Corp. v. Indemnity Ins. Co. of North America, 108 A.D.2d
624 (1st Dep’t 1985).
12. Moreover, CPLR § 2005 gives the Court the power to excuse a default resulting
from law office failure when relief is sought to vacate an order on default. CPLR § 2005 states
in pertinent part:
Upon an application satisfying the requirements of…submission (a) of Rule 5015, the
court shall not, as a matter of law, be precluded from exercising its discretion in the
interests of justice to excuse delay or default resulting from law office failure.
13. Said statute was enacted for the express purpose of overruling Barasch v.
Micucci, 49 N.Y.2d 594 (1980) which held that law office failure was insufficient as a matter of
law.
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14. Indeed, case law authority has acknowledged CPLR § 2005, holding that is within
the court’s discretion whether, in the interest of justice, to excuse delay or default arising from
law office failure. Shmarkatyuk v. Chouchereba, 291 A.D.2d 487 (2d Dep’t 2002); Parker v.
City of New York, 272 A.D.2d 310 (2d Dep’t 2000) (court may accept law office failure as a
reasonable excuse for default judgment); Politi v. Taylor, 176 A.D.2d 1124, 575 N.Y.S.2d 590
(3d Dep’t 1991).
15. The underlying principle of excusing defaults based on law office failure is that a
mistake or neglect by counsel should not deprive a party of his or her day in court in the absence
of prejudice to the opponent. Pollack v. Eskander, 191 A.D.2d 1022 (4th Dep’t 1993).
16. The undersigned, a solo practitioner, concedes to such a law office mistake. I had
no intention to ignore this Court’s calendar. Indeed, I filed a motion to dismiss on behalf of my
client on what I believed to be a timely basis. See NYSCEF No. 14. If, perhaps, I misinterpreted
CPLR 7804(f), depriving the Respondent of its opportunity to be heard because of my mistake
would be a manifestly unjust result.
17. Indeed, there was no willful default. As here, a default that was a result of mere
error, rather than willfulness, should be excused. See Burgos v. Allcity 707 N.Y.S. 2d 438 (1st
Dep’t 2000). And, moreover, where the default is relatively short lived, the motion to vacate
should be granted. See Stango v. Brynes 158 N.Y.S. 3d 221 (2d Dept 2021). Here, Respondent
seeks to vacate less than 24 hours subsequent to issuance of the Judgment/Order.
18. At this juncture of the litigation, Petitioner suffered no prejudice as a result of
Respondent’s miscalculation of the statutory time to make its motion. Equity and fairness dictate
that Respondent should have this case heard on the merits.
19. Considering the strong public policy as well as the preference of the courts
favoring the resolution of cases on the merits rather than on default, the evidence herein warrants
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that the Judgment/Order be vacated. Anything to the contrary would result in the Petitioner
evading judicial review of its arguments, all to the detriment of the Respondent.
20. In addition to demonstrating an excusable default, Respondent can also
demonstrate a “meritorious claim/defense”.
21. “To satisfy the criterion of a ‘meritorious claim/defense,’ the claim/defense need
not be ultimately persuasive at this stage.” American Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92
F.3d 57 (2d Cir. 1996). A party seeking to avoid a default judgment need not conclusively
establish the validity of his claim/defense, only that he has a potentially meritorious
claim/defense. Resource Trade Finance, Inc. v. PMI Alloys, LLC, 2002 U.S. Dist. LEXIS
(S.D.N.Y.); Robinson v. Worldwide Management Services, Inc. 1992 U.S. Dist. LEXIS
(N.D.N.Y.); Snall v. City of New York, 1999 U.S. Dist. LEXIS 18557 (E.D.N.Y.) aff'd, 242 F.3d
367 (2d Cir. 2000); Kent v. Fearless Realty, Inc., 174 A.D. 2d 499 (1st Dept. 1991); Kulka v.
Molsky, 170 A.D. 581 (2d Dept. 1991); Mark III Associates, Inc. v. HEC Engineering Company,
Ltd., 148 A.D.2d 990 (4th Dept. 1989).
22. The showing of a meritorious defense customarily calls for an affidavit of merits
containing evidentiary facts by a person competent to attest to the meritorious defense of the
claim.
23. Here, the pending motion to dismiss demonstrates the meritorious defenses to the
Petition’s claims. The exhibits submitted with the Petition (specifically the hearing transcript of
the underlying disciplinary matter the Respondent’s By-Laws) - as well as the affidavits and
arguments supporting the pending motion to dismiss - demonstrate the Respondent’s meritorious
defense. Those documents are all incorporated herein by reference. See CPLR 2214(c) (“in an
e-filed action, a party that files papers in connection with a motion need not include copies of
papers that were filed previously electronically with the court”); see also Studio A Showroom,
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LLC v. Yoon, 99 A.D.3d 632, 879 (1st Dep’t 2012) (failure to attach the Complaint should be
overlooked because “the pleadings were filed electronically and thus were available to the parties
and the court”).
24. Based on the foregoing, Respondent is entitled to a vacatur of the
Order/Judgment.
25. Pursuant to 22 NYCRR 202.8-e, I gave notice to Petitioner’s counsel by email on
June 13, 2023 that Respondent would be presenting an order to show cause seeking injunctive
relief on June 14, 2023. In addition, subsequent to the email, I had a telephone conversation on
June 13, 2023 with Petitioner’s counsel to the same effect.
26. No prior application for the same or similar relief set forth herein has been made
to this or any other Court.
WHEREFORE, defendant respectfully requests an (1) excusing the Respondent
WYANDANCH VOLUNTEER FIRE COMPANY, INC.’s, default for failing to appear in court
and vacating the Order/Judgment entered against the Respondent on June 13, 2023, (2) restoring
the within action to the active calendar, (3) allowing Respondent’s previously filed motion to
dismiss to be heard and decided, and (4) for such other and further relief as this Court deems just
and proper.
Dated: East Norwich, New York
June 13, 2023 /s/_Frank M. Scalera___________
By: FRANK M. SCALERA
Law Offices of Frank M. Scalera
P.O. Box 211
East Norwich, New York 11732
516-578-1700
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Preview
FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X In the Matter of ALLAN GOETZ, Petitioner, AFFIRMATION IN SUPPORT For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 607311/2023 -against- WYANDANCH VOLUNTEER FIRE COMPANY, INC. and TOWN OF BABYLON, Respondents. ---------------------------------------------------------------------X FRANK M. SCALERA, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am the attorney for Respondent WYANDANCH VOLUNTEER FIRE COMPANY, INC., in the above-entitled action, and am familiar with the facts and circumstances herein. 2. This affirmation is submitted in support of the within Order to Show Cause which seeks an Order (1) excusing the Respondent WYANDANCH VOLUNTEER FIRE COMPANY, INC.’s, default for failing to appear in court and vacating the Order/Judgment entered against the Respondent on June 13, 2023, (2) restoring the within action to the active calendar, (3) allowing Respondent’s previously filed motion to dismiss to be heard and decided, and (4) for such other and further relief as this Court deems just and proper. 3. This special proceeding involves efforts by the Petitioner, Allan Goetz, to restore him to active membership in the Wyandanch Volunteer Fire Company following his dismissal from active membership because of disciplinary action. 1 of 6 FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 4. Following service of the Petition, Petitioner’s counsel consented to an adjournment of the Petition from May 1, 2023 to June 1, 2023. See NYSCEF No. 12. The Court moved the return date to June 5, 2023 based on its motion calendar practice. 5. Thereafter, Petitioner consented to a second adjournment of the Petition to June 12, 2023. See NYSCEF No. 13. I spoke with Petitioner’s counsel regarding this adjournment request, Petitioner’s counsel consented, and only asked for a week or so to respond to Respondent’s filing. I consented to Petitioner’s counsel’s request for additional time to respond. 6. On June 12, 2023, Respondent filed a Notice of Motion with supporting documents seeking dismissal of the proceeding pursuant to CPLR 3211(a)(7) and 7804(f). See NYSCEF No. 14. BASIS OF THE MOTION 7. Defendant respectfully submits that the Judgment/Order of this Court should be vacated as Respondent appeared and filed its motion to dismiss, and that there is an excusable default and that a meritorious defense exists with regard to Petition. 8. CPLR § 5015 is the main provision allowing for the vacatur of judgments and orders. This statute provides several grounds for seeking such relief, the following subdivision of which is applicable herein: (a) On motion. [t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default… 9. There is a strong public policy as well as the preference of the courts favoring the resolution of cases on the merits rather than on default. Robles v. Grace Episcopal Church, 192 A.D.2d 515 (2d Dep’t. 1993); Balint v. Marine Midland Bank, N.A., 112 A.D.2d 1023 (2d Dep’t. 1985); DFI Communications, Inc. v. Golden Penn Theatre Ticket Service, 87 A.D.2d 778 (1st 2 of 6 FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 Dep’t. 1982); Bishop v. Galasso, 67 A.D.2d 753 (3d Dep’t. 1979) (law favors resolution of cases on the merits and therefore courts are liberal in opening default). 10. Significantly, even when none of the statutory conditions set forth for relief from judgment or order have been met pursuant to CPLR 5015, a trial court still has the inherent authority to vacate a default in the interests of justice. Lounsbury v. Kiehl, 255 A.D.2d 774, (3d Dept. 1998). 11. In furtherance of the above-mentioned public policy, a default will be vacated upon the proper showing of a meritorious claim/defense and reasonable excuse for the default. Tolliver v. County of Nassau, 231 A.D.2d 708 (2d Dept. 1996); Goldstein Affiliates, Inc. v. Lent Art Knitting Corp., 75 A.D.2d 551 (1st Dep’t 1980); Glass v. Jamabeck Properties, Inc., 73 A.D.2d 106, (2d Dept. 1980). In addition, the court may consider such factors as the extent of the delay, the prejudice to the non-defaulting party, and any evidence of lack of willfulness or intent to default. Arred v. Enterprises Corp. v. Indemnity Ins. Co. of North America, 108 A.D.2d 624 (1st Dep’t 1985). 12. Moreover, CPLR § 2005 gives the Court the power to excuse a default resulting from law office failure when relief is sought to vacate an order on default. CPLR § 2005 states in pertinent part: Upon an application satisfying the requirements of…submission (a) of Rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. 13. Said statute was enacted for the express purpose of overruling Barasch v. Micucci, 49 N.Y.2d 594 (1980) which held that law office failure was insufficient as a matter of law. 3 of 6 FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 14. Indeed, case law authority has acknowledged CPLR § 2005, holding that is within the court’s discretion whether, in the interest of justice, to excuse delay or default arising from law office failure. Shmarkatyuk v. Chouchereba, 291 A.D.2d 487 (2d Dep’t 2002); Parker v. City of New York, 272 A.D.2d 310 (2d Dep’t 2000) (court may accept law office failure as a reasonable excuse for default judgment); Politi v. Taylor, 176 A.D.2d 1124, 575 N.Y.S.2d 590 (3d Dep’t 1991). 15. The underlying principle of excusing defaults based on law office failure is that a mistake or neglect by counsel should not deprive a party of his or her day in court in the absence of prejudice to the opponent. Pollack v. Eskander, 191 A.D.2d 1022 (4th Dep’t 1993). 16. The undersigned, a solo practitioner, concedes to such a law office mistake. I had no intention to ignore this Court’s calendar. Indeed, I filed a motion to dismiss on behalf of my client on what I believed to be a timely basis. See NYSCEF No. 14. If, perhaps, I misinterpreted CPLR 7804(f), depriving the Respondent of its opportunity to be heard because of my mistake would be a manifestly unjust result. 17. Indeed, there was no willful default. As here, a default that was a result of mere error, rather than willfulness, should be excused. See Burgos v. Allcity 707 N.Y.S. 2d 438 (1st Dep’t 2000). And, moreover, where the default is relatively short lived, the motion to vacate should be granted. See Stango v. Brynes 158 N.Y.S. 3d 221 (2d Dept 2021). Here, Respondent seeks to vacate less than 24 hours subsequent to issuance of the Judgment/Order. 18. At this juncture of the litigation, Petitioner suffered no prejudice as a result of Respondent’s miscalculation of the statutory time to make its motion. Equity and fairness dictate that Respondent should have this case heard on the merits. 19. Considering the strong public policy as well as the preference of the courts favoring the resolution of cases on the merits rather than on default, the evidence herein warrants 4 of 6 FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 that the Judgment/Order be vacated. Anything to the contrary would result in the Petitioner evading judicial review of its arguments, all to the detriment of the Respondent. 20. In addition to demonstrating an excusable default, Respondent can also demonstrate a “meritorious claim/defense”. 21. “To satisfy the criterion of a ‘meritorious claim/defense,’ the claim/defense need not be ultimately persuasive at this stage.” American Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57 (2d Cir. 1996). A party seeking to avoid a default judgment need not conclusively establish the validity of his claim/defense, only that he has a potentially meritorious claim/defense. Resource Trade Finance, Inc. v. PMI Alloys, LLC, 2002 U.S. Dist. LEXIS (S.D.N.Y.); Robinson v. Worldwide Management Services, Inc. 1992 U.S. Dist. LEXIS (N.D.N.Y.); Snall v. City of New York, 1999 U.S. Dist. LEXIS 18557 (E.D.N.Y.) aff'd, 242 F.3d 367 (2d Cir. 2000); Kent v. Fearless Realty, Inc., 174 A.D. 2d 499 (1st Dept. 1991); Kulka v. Molsky, 170 A.D. 581 (2d Dept. 1991); Mark III Associates, Inc. v. HEC Engineering Company, Ltd., 148 A.D.2d 990 (4th Dept. 1989). 22. The showing of a meritorious defense customarily calls for an affidavit of merits containing evidentiary facts by a person competent to attest to the meritorious defense of the claim. 23. Here, the pending motion to dismiss demonstrates the meritorious defenses to the Petition’s claims. The exhibits submitted with the Petition (specifically the hearing transcript of the underlying disciplinary matter the Respondent’s By-Laws) - as well as the affidavits and arguments supporting the pending motion to dismiss - demonstrate the Respondent’s meritorious defense. Those documents are all incorporated herein by reference. See CPLR 2214(c) (“in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court”); see also Studio A Showroom, 5 of 6 FILED: SUFFOLK COUNTY CLERK 06/14/2023 11:02 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/14/2023 LLC v. Yoon, 99 A.D.3d 632, 879 (1st Dep’t 2012) (failure to attach the Complaint should be overlooked because “the pleadings were filed electronically and thus were available to the parties and the court”). 24. Based on the foregoing, Respondent is entitled to a vacatur of the Order/Judgment. 25. Pursuant to 22 NYCRR 202.8-e, I gave notice to Petitioner’s counsel by email on June 13, 2023 that Respondent would be presenting an order to show cause seeking injunctive relief on June 14, 2023. In addition, subsequent to the email, I had a telephone conversation on June 13, 2023 with Petitioner’s counsel to the same effect. 26. No prior application for the same or similar relief set forth herein has been made to this or any other Court. WHEREFORE, defendant respectfully requests an (1) excusing the Respondent WYANDANCH VOLUNTEER FIRE COMPANY, INC.’s, default for failing to appear in court and vacating the Order/Judgment entered against the Respondent on June 13, 2023, (2) restoring the within action to the active calendar, (3) allowing Respondent’s previously filed motion to dismiss to be heard and decided, and (4) for such other and further relief as this Court deems just and proper. Dated: East Norwich, New York June 13, 2023 /s/_Frank M. Scalera___________ By: FRANK M. SCALERA Law Offices of Frank M. Scalera P.O. Box 211 East Norwich, New York 11732 516-578-1700 6 of 6