Preview
FILED: ROCKLAND COUNTY CLERK 08/12/2020 04:08 PM INDEX NO. 031137/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2020
Supreme Court of the State of fjleto 19ork
Eppellate Bibition: Seconh §ubicial Bepartment
D63070
Q/afa
AD3d Submitted - A ril 2020
Àf$ 27,
ALAN D. SCHEINKMAN, P.J. #2p
JEFFREY A. COHEN
HECTOR D. LASALLE O
PAUL WOOTEN, Ji.
. ... .. _____-
2019-07368 DECISION & ORDER
Meredith Trussell-Slutsky, appellant,
v Carol Mcilmurray, et al., respondents.
(Index No. 31137/17)
Fin-kelstein & Partners, LLP, Newburgh, NY (James W. Shuttleworth III of counsel),
for appellant.
In an action, inter alia, to recover damages for defamation per se and intentional and
negligent infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court,
defendants'
RoeMand County (Robert M. Berliner, J.), dated May 17, 2019. The order granted the
motion pursuant to CPLR 5015(a)(1), in effect, to vacate ajudgment entered February 7, 2019, upon
their default in appearing at an inquest on the issue of damages and upon a jury verdict in favor of
the plaintiff and agaii1st them in the principal sum of $4,058,848.40, and for a new inquest on the
issue of damages.
ORDERED that the order is affinned, without costs or disbursements.
In March 2017, the plaintiff commenced this action, inter alia, against the defendants
to recover damages for defamation per se and intentional and negligent infliction of emotional
distress. The defendants filed an answer dated June 2, 2017. By order and judgment dated
defendants'
November 15, 2018, following the failure to provide certain discovery, the Supreme
defendants'
Court struck the answer pursuant to CPLR 3126 and entered judgment against thein on
the issue of liability.CThereafter, the defendants failed to appear in gourt on January 2, 2019,-for a
scheduled'appearance ilrthe trial feady part, and an inquest on the issue of damages was held the
next day in their absence. On January 4, 2019, the jury returned a verdict in favor of the plaintiff and
against the defendants, awarding $500,000 in compensatory damages arid $3;500,000 in punitive
damages. A judgment dated February 7, 2019, awarded the plaintiff the principal sum of
$4,058,8i4840 (hereidafter the judgment).
June 24, 2020 Page 1.
TRUSSELL-SLUTSKY v MCILMURRAY
1 of 2
FILED: ROCKLAND COUNTY CLERK 08/12/2020 04:08 PM INDEX NO. 031137/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2020
By notice of motion dated March 5, 2019, the defendants moved pursuant to CPLR
5015(a)(1), in effect, to vacate the judgment and for a new inquest on the issue of damages. The
Supreme Court granted the motion, and the plaintiff appeals.
In order to vacate the judgment, the defendants were required to demonstrate both a
reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1] ; King
v DanielShoes, Inc., 180 AD3d 883, 884; Golden v Romanowski, 128 AD3d 1009, 1009). "Whether
Court"
an excuse is reasonable is a determination within the sound discretion of the Supreme
(Walker v Mohammed, 90 AD3d 1034, 1034; see 555 Prospect Assoc., LLC v Greenwich Design &
Dev. Group Corp., 154 AD3d 909, 909).
defendants'
Here, the attorney, who had personalknowledge ofthe facts constituting
defendants'
the proffered excuse (cf Matter ofRamos v Ramos, 174 AD3d 718, 718-719), set forth
a detailed and credible explanation for his failure to appear in court on January 2, 2019, and there
is nothing in the record to contradict his contention thathe was never notified that an inquest on the
issue of damages would be held the next day. Under these circumstances, the defendants
demonstrated a reasonable excuse for the default (see Mid-Hudson Props, Inc. v Klein, 167 AD3d
862, 864; Sposito v Cutting, 165 AD3d 863, 864; Golden v Romanowski, 128 AD3d at 1010).
Furthermore, contrary to the plaintiff's contention, the defendants demonstrated a potentially
meritorious defense to the damages claimed by the plaintiff, which included a claim for punitive
defendants'
damages. Althoughthe answer was stricken, "a defaulting defendant does not admitthe
plaintifPs-conclusion-as-to damages-añd-is entitledtan inquõstro cross-examifie-i¾ikiiisses, give
damages"
testimony, and offer proof in mitigation of (Golden v Romanowski, 128 AD3d at 1010;
see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 ; Rokina Opt. Co. v
Camera King, 63 NY2d 728, 730-731; Dejesus v H E. Broadway, Inc., 175 AD3d 1485, 1486 ;
Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 126). Here, inasmuch as a defendant's wealth
damages"
is "material to the assessment of punitive (Matter of 91st St. Crane Collapse Litig., 154
AD3d 139, 157 ; see McIntyre v Manhattan Ford, Lincoln-Mercury, 256 AD2d 269, 271; Buggie v
Cutler, 222 AD2d 640, 642), the defendants were entitled to present such evidence at an inquest.
Accordingly, we agree with the Supreme Court's determination to grant the
defendants'
motion pursuant to CPLR 5015(a)(1), in effect, to vacate the judgment and for a new
inquest on the issue of damages.
SCHElNKMAN, P.J., COHEN, LASALLE and WOOTEN, JJ., concur.
ENTER:
SJPREME COURT. STATE 0F NEW YORK
APPELLATE DMSION SECOND DEPT. AS
L APRILANNE AGOST4NO, Clerk of the Appellate DMsion of the Supr,me
Court, Second Judicial Department, doNreby certif y that t have compand
Aprihnne A enstinn
this copy with the onginal filed in
my
daice on p§pt
4 Cler t
this copy is a correct tmnstnation
WW
oœd originial
Umvmreunto set my hand and affixed
oEfWERED
IN WITNESS
the seabofflis Courted $43020
So AUG f 2 20
June 24, 2020 Page 2.
TRUSSELL-SLUTSKY v MCILMURRAY
2 of 2
Preview
FILED: ROCKLAND COUNTY CLERK 08/12/2020 04:08 PM INDEX NO. 031137/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2020 Supreme Court of the State of fjleto 19ork Eppellate Bibition: Seconh §ubicial Bepartment D63070 Q/afa AD3d Submitted - A ril 2020 Àf$ 27, ALAN D. SCHEINKMAN, P.J. #2p JEFFREY A. COHEN HECTOR D. LASALLE O PAUL WOOTEN, Ji. . ... .. _____- 2019-07368 DECISION & ORDER Meredith Trussell-Slutsky, appellant, v Carol Mcilmurray, et al., respondents. (Index No. 31137/17) Fin-kelstein & Partners, LLP, Newburgh, NY (James W. Shuttleworth III of counsel), for appellant. In an action, inter alia, to recover damages for defamation per se and intentional and negligent infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, defendants' RoeMand County (Robert M. Berliner, J.), dated May 17, 2019. The order granted the motion pursuant to CPLR 5015(a)(1), in effect, to vacate ajudgment entered February 7, 2019, upon their default in appearing at an inquest on the issue of damages and upon a jury verdict in favor of the plaintiff and agaii1st them in the principal sum of $4,058,848.40, and for a new inquest on the issue of damages. ORDERED that the order is affinned, without costs or disbursements. In March 2017, the plaintiff commenced this action, inter alia, against the defendants to recover damages for defamation per se and intentional and negligent infliction of emotional distress. The defendants filed an answer dated June 2, 2017. By order and judgment dated defendants' November 15, 2018, following the failure to provide certain discovery, the Supreme defendants' Court struck the answer pursuant to CPLR 3126 and entered judgment against thein on the issue of liability.CThereafter, the defendants failed to appear in gourt on January 2, 2019,-for a scheduled'appearance ilrthe trial feady part, and an inquest on the issue of damages was held the next day in their absence. On January 4, 2019, the jury returned a verdict in favor of the plaintiff and against the defendants, awarding $500,000 in compensatory damages arid $3;500,000 in punitive damages. A judgment dated February 7, 2019, awarded the plaintiff the principal sum of $4,058,8i4840 (hereidafter the judgment). June 24, 2020 Page 1. TRUSSELL-SLUTSKY v MCILMURRAY 1 of 2 FILED: ROCKLAND COUNTY CLERK 08/12/2020 04:08 PM INDEX NO. 031137/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2020 By notice of motion dated March 5, 2019, the defendants moved pursuant to CPLR 5015(a)(1), in effect, to vacate the judgment and for a new inquest on the issue of damages. The Supreme Court granted the motion, and the plaintiff appeals. In order to vacate the judgment, the defendants were required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1] ; King v DanielShoes, Inc., 180 AD3d 883, 884; Golden v Romanowski, 128 AD3d 1009, 1009). "Whether Court" an excuse is reasonable is a determination within the sound discretion of the Supreme (Walker v Mohammed, 90 AD3d 1034, 1034; see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909, 909). defendants' Here, the attorney, who had personalknowledge ofthe facts constituting defendants' the proffered excuse (cf Matter ofRamos v Ramos, 174 AD3d 718, 718-719), set forth a detailed and credible explanation for his failure to appear in court on January 2, 2019, and there is nothing in the record to contradict his contention thathe was never notified that an inquest on the issue of damages would be held the next day. Under these circumstances, the defendants demonstrated a reasonable excuse for the default (see Mid-Hudson Props, Inc. v Klein, 167 AD3d 862, 864; Sposito v Cutting, 165 AD3d 863, 864; Golden v Romanowski, 128 AD3d at 1010). Furthermore, contrary to the plaintiff's contention, the defendants demonstrated a potentially meritorious defense to the damages claimed by the plaintiff, which included a claim for punitive defendants' damages. Althoughthe answer was stricken, "a defaulting defendant does not admitthe plaintifPs-conclusion-as-to damages-añd-is entitledtan inquõstro cross-examifie-i¾ikiiisses, give damages" testimony, and offer proof in mitigation of (Golden v Romanowski, 128 AD3d at 1010; see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 ; Rokina Opt. Co. v Camera King, 63 NY2d 728, 730-731; Dejesus v H E. Broadway, Inc., 175 AD3d 1485, 1486 ; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 126). Here, inasmuch as a defendant's wealth damages" is "material to the assessment of punitive (Matter of 91st St. Crane Collapse Litig., 154 AD3d 139, 157 ; see McIntyre v Manhattan Ford, Lincoln-Mercury, 256 AD2d 269, 271; Buggie v Cutler, 222 AD2d 640, 642), the defendants were entitled to present such evidence at an inquest. Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion pursuant to CPLR 5015(a)(1), in effect, to vacate the judgment and for a new inquest on the issue of damages. SCHElNKMAN, P.J., COHEN, LASALLE and WOOTEN, JJ., concur. ENTER: SJPREME COURT. STATE 0F NEW YORK APPELLATE DMSION SECOND DEPT. AS L APRILANNE AGOST4NO, Clerk of the Appellate DMsion of the Supr,me Court, Second Judicial Department, doNreby certif y that t have compand Aprihnne A enstinn this copy with the onginal filed in my daice on p§pt 4 Cler t this copy is a correct tmnstnation WW oœd originial Umvmreunto set my hand and affixed oEfWERED IN WITNESS the seabofflis Courted $43020 So AUG f 2 20 June 24, 2020 Page 2. TRUSSELL-SLUTSKY v MCILMURRAY 2 of 2