Preview
FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018
SUPREME COURT OF THE STATE OF NEW YORK
RICHMOND COUNTY
--------------------------------------------------------------------------------X
DIMARZIO, INC., INDEX NO.: 151121/17
Plaintiff,
AFFIRMATION IN
--AGAIN
A G A I N S T - SUPPORT OF
ORDER TO
MARINA LEVIT, SHOW CAUSE
Defendant.
--------------------------------------------------------------------------------X X
Morris Fateha, an attorney duly admitted to practice law before the Courts of the State of
New York, hereby affirms the following, under penalty of perjury:
1. I am a member of the Law Office of Morris Fateha, counsel to defendant Marina
"Defendant"
Levit (the "Defendant") in the within action. I am fully familiar with the facts and circumstances
that surround this matter. The basis if my familiarity arises out of conversations had with
Defendant and a review of relevant documents and records.
2. I submit this affirmation in support of Defendant's instant order to show cause
"Decision"
seeking an order vacating the Court's decision dated May 17, 2018 (the "Decision") which,
among other things, (i) refused to afford Defendant the courtesy of an adjournment of a motion
before the Court for the first time and (ii) permitted judgment to be entered in favor of Plaintiff
and against Defendant in a blatantly frivolous matter and for a grossly exaggerated total (the
CC
"OSC").
3. Simply, the Decision was a miscarriage of justice that, as described below, must
be vacated immediately.
4. When there have been no prior adjournments of a motion and, in light of the
strong public policy favoring resolution of cases on their merits, the failure to allow an
adjournment is improvident. See, Maniscalco v. Mount Sinai Medical Center, 128 A.D.3d 1029,
1030, 9 N.Y.S.3d 650 (2d Dept. 2015).
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5. The same considerations are given when the need for an adjournment is based on
an attorney's actual engagement. See, Warner v. Orange County Regional Medical Center, 126
A.D.3d 887, 888, 6 N.Y.S.3d 83 (2d Dept. 2015).
FACTS RELEVANT TO THE MAY 17, 2018 APPEARANCE
6. Your affirmant carries a large caseload. Consistent with same, I was forced to
appear on an emergency order to show cause in a case titled U.S. Bank v. Moise Garram, et al.,
index no. 500627/2014, in the Kings County Supreme Court, in order to stop the sale of that
defendant's home. Attached hereto as Exhibit A of the signed order to show cause evidencing
my appearance thereat.
7. As a result, I sent a per diem attorney to cover the motion and cross-motion before
this Court, with the directive that the per diem attorney secure an adjournment. As this was the
first time the motion and cross-motion were before the Court, I believed the Court's granting of
same to be a matter of course.
8. I was shocked and appalled to learn that not only did the Court refuse this
courtesy, but also permitted the entry of judgment against Defendant. A copy of the
Decision is annexed hereto as Exhibit B.
9. Even more abhorrent than the wholly baseless causes of action which the Court
took as true without Plaintiff having to provide a shred of evidence was the fact that Plaintiff's
attorney has been afforded multiple courtesies, even after he completely failed to appear and did
not send anyone to cover.
10. Especially relevant is that on November 16, 2017, Plaintiff failed to appear
entirely but, when it made an OSC to vacate the default, same was granted by the Court.
11. Indeed, as evidenced by the printout annexed hereto as Exhibit C, this Court has
adjourned appearances at least 8 other times, most at the request of Plaintiff.
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12. Further, Defendant's opposition to the Motion and Cross-Motion papers detail
these facts, which were simply ignored by the Court to the great prejudice of Defendant.
13. In addition, as further detailed below, Defendant was required to make-and
made-a $70,000.00 payment to Plaintiff as a result of the criminal case brought against her.
The Court erroneously failed to deduct this from the judgment amount awarded by the Court.
14. In addition, as evidenced by the W2s and other documents annexed hereto as
Exhibit D, Defendant only earned $277,165, and not the $315,476.88 Plaintiff fraudulently
claims of which $70,000 was paid back leaving $207, 165.88.
RELEVANT BACKGROUND FACTS
15. The timeline below demonstrates the harassing nature of Plaintiff's motion
practice.
16. Plaintiff made a Motion to Dismiss on July 31, 2017, which was scheduled to be
heard on November 16, 2017.
17. While the Motion to Dismiss was pending, on November 7, 2017, Plaintiff made
the Motion for Summary Judgment.
18. Then, after failing to appear due to his admitted own mistakes, Plaintiff's attorney
made an OSC.
19. Now, amazingly, after prevailing on the underlying motion that resulted in the
Order, Plaintiff made the instant Motion to reargue same.
20. While the indictments and other criminal documents do in fact exist, there are
certain facts-all of which were pled in detail in the Counterclaims-that warrant denial of the
Motion.
21. First, as admitted by Plaintiff in its Memorandum of Law, the criminal court
imposed restitution in the amount of $70,000, which Defendant repaid. As such, it is
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indisputable that, following the criminal matters, Defendant has made Plaintiff whole.
22. Although Defendant faced other charges, the $70,000 was the only amount
determined by the criminal court that had to be paid, and Defendant did so.
23. Therefore, as more fully detailed below, the allegations against Defendant-as
well as the actions taken by Plaintiff during the relevant time period-are baseless, rendering the
Counterclaims viable and warranting dismissal, let alone denial of the Motion.
24. Regarding the Cross-Motion, Defendant served various discovery demands
including a Request for the Production of Documents, a copy of which is annexed hereto as
Exhibit E.
25. Plaintiff provided cursory responses, copies of which are annexed hereto as
Exhibit F.
26. In the response, Plaintiff failed to provide responses to demands numbered 1, 2, 3,
6, 8, 9, 11, 15, 17, 18, 19, 20, 21, 22, 24, 25, 27, 29, 30, 31, 32 and 33.
27. Defendant provided a good faith letter to Plaintiff, a copy of which is annexed
hereto as Exhibit G, but Plaintiff never provided any further responses.
28. As such, the Cross-Motion should be granted in its entirety.
29. Indeed, it seems clear that Plaintiff is doing everything possible to avoid
discovery so that the real facts of this case-that will ultimately exonerate Defendant-are not
discovered.
SUMMARY OF RELEVANT INFORMATION
30. As detailed below and in the various papers, this action involves Defendant, a
victim who took the blame for a scheme in which Plaintiff's principals were very much involved.
servant,"
Indeed, Defendant was far from a "faithless having acted at her employer's behest in
this wrongful scheme.
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31. After committing allegedly wrongful acts at Plaintiff's request Defendant, a single
mother, accepted a criminal plea rather than risking having to abandon her young children.
32. Further, Defendant was harassed, sexually and otherwise, by Plaintiff and its
employees, principals and agents.
33. In addition, and in further support of the evidence of fraud and other acts in which
Plaintiff's management was involved, and as evidenced by the accompanying affidavit of Marina
Levit, upon information and belief:
(i) They used corporate credit cards (VISA for Luis and American Express for Glenn
Simmons) for personal use;
"corporate"
(ii) Glenn has a car which is used exclusively for personal use;
(iii) Jolene Moore (or a name similar to that) had an affair with Larry DiMarzio, and
she subsequently made a claim against him for sexual harassment. Once his wife
learned of the affair, Mr. DiMarzio permitted Jolene to use corporate cards and
company money for personal expenses. Eventually, the case was settled out of
court, with Mr. DiMarzio paying her $20,000-25,000 through the company's ADP
account.
34. For these reasons and those set forth below, the Motion should be denied in its
entirety.
35. Plaintiff also lied to the Court when he filed documents stating that employees
"only"
had access to $8,000/year. Documentary discovery will disprove this entirely, such as tax
documentations, such as W-2, 1099, etc.
36. If Larry DiMarzio pays himself as an employee of the company, then whatever
benefit,"
money he uses for himself for personal reasons would also apply as a "fringe and it
certainly wouldn't be limited to $8,000/year.
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37. Employees who benefit from these fringe benefits would include Larry DiMarzio,
his wife Gina DiMarzio, his daughter, Christiana DiMarzio., etc. As such, discovey is necessary
from them, such as e-mail, text messages, physical forms, etc., things that Plaintiff has
conveniently refused to provide to date.
"annual"
38. Also, discovery is necessary from other employees documenting their
limit of $8,000. This includes receipts, expense reports, payouts, GL breakdowns of
expenditures, W-2, 1099 for any and all employees that utilize such benefits. This includes but is
not limited to travel arrangements, personal credit cards written off as business expenses, dinner
arrangements written off as advertising disbursements ("AD"), all purchases, and a full
accounting and revision of all GL accounts. This includes Larry DiMarzio, his wife Gina
DiMarzio, his daughter, Christiana DiMarzio., etc.
L THE ORDER, ENTERED ON DEFAULT OF RESPONDENT, SHOULD BE
VACATED
39. N.Y. C.P.L.R. 5015(a) provides the 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; a party seeking to be relieved from an order or
judgment entered must demonstrate both a reasonable excuse for the default and a meritorious
defense. Eugene Di Lorenzo, Inc. v. A. C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 (1986); Barasch
v. Micucci, 49 N.Y.2d 594, 599 (1980).
40. The court issuing a judgment or order has the power under CPLR 5015 to relieve
a party of its obligations for the reasons described therein, or under its inherent powers in the
interests of justice. See Melendez v. City of New York, 271 A.D 2d 416, 706 N.Y.S.2d 132, 133
(2d Dep't 2002); Molloy v. Froyton, 119 Misc. 2d 1058, 465 N.Y.S.2d 396, 397 (Civ. Ct.
Westchester Co. 1983)(quoting Ladd v. Stevenson, 112 N.Y. 325, 332 (1889)); Royster v.
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Consolidated Edison, 114 Misc. 2d 529, 533-34, 452 N.Y.S.2d 146, 149 (Civ. Ct. N.Y. Co.
1982). See also American Cities Co., Inc. v. Stevenson, 187 Misc. 107, 110, 60 N.Y.S.2d 685,
687 (N.Y. Co. 1946)(court has inherent power to correct or amend judgments to reflect the actual
facts).
41. In the matter of Roe Bros, Inc., v. Adam, 114 A.D.2d 1024, 495-N.Y.S. 2d 461
(2d Dept. 1985), the court held that "a court is authorized to vacate a default judgment pursuant
to the provisions of N.Y. C.P.L.R. 5015 upon a showing of an excusable default and a
defense."
meritorious Id. at 462. The court further held that there is a "strong public policy in
favor of resolving cases on their merits". Id. at 462.
42. The court in Anolick v. Travellers Ins. Co., 63 A.D.2d 665,404 N.Y.S.2d 689
(2dDept. 1978), held that courts must "balance all of the relevant factors in passing upon a
motion to vacate a default. Id. at 690. In that case, the court considered the defendant's lack of
intent to deliberately default or to abandon the defense of the action and that the defendant
promptly moved to vacate its default. The court weighed the factors that the defendant 1)
promptly moved to vacate its default; 2) that the plaintiff would not suffer any prejudice as a
result of the delay and 3) the existence of a meritorious defense. In the Anolick case, the court
found that the lower court did not exercise its discretion property in refusing to vacate the
default.
43. In applying the courts discretionary consideration set forth in Anolick to the
instant action, it is clear that Defendant did not deliberately default or abandon the defense of the
action, but rather ended up in default due to the Court failing to award an adjournment due to
Defendant's attorney having to appear on an emergency Order to Show Cause to save someone
from being evicted from their home.
44. Again, aper diem attorney was sent.
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45. The Courts have consistently adopted a liberal policy in respect to defaults,
because it is well settled that as a matter of general policy, disposition of cases should be on the
merits of the action and not by way of default. See, Ahmah v. Aniolowski, 28 AD.3d 692, 814
(2nd
NYS.2d 666 Dept. 2006). To obtain relief on the ground of excusable default, the movant
must show that the default resulted from an "excusable error". See, Zino v. Joab Taxi, Inc., ,2.020
(2nd
Ad.3d 521 Dept. 2005). Therefore, under CPLR 5015, there was an excusable default in this
action which warrants this court to vacate the judgment, open the default, and permit the
respondent to argue the Motion and Cross-Motion.
46. The merit of Defendant's papers is detailed below.
II. STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENT
47. "On a motion for summary judgment, facts must be viewed in the light most
party."
favorable to the non-moving Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012).
Summary judgment is a drastic remedy and should only be granted where the moving party has
demonstrated the absence of any triable issue of fact through sufficient evidence. Vega, 18 NY3d
at 503. "The moving party's failure to make a prima facie showing of entitlement to summary
judgment requires a denial of the motion, regardless of the sufficiency of the opposing
papers."
Vega, 18 NY3d at 503. "Once this burden is met, the burden shifts to the opposing party
to submit proof in admissible form sufficient to create a question of fact requiring a
trial."
Kershaw v. Hosp. for Special Surgery, 114 AD3d 75, 82 (1st Dep't 2013).
Servant"
48. Here, Plaintiff seeks summary judgment under New York's "Faithless
doctrine.
49. As it pertains specifically to cases involving the Faithless Servant Doctrine, in
Consolidated Edison Co. v. Zebler, 40 Misc.3d 1230(A) (Sup. Ct. N.Y. Cty. 2013), the Court
held summary judgment to be:
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a "drastic remedy, the procedural equivalent of a trial, and should not be granted
where triable issues of fact are raised that cannot be resolved on conflicting
affidavits."
Epstein v. Scally, 99 A.D.2d 713, 714 (1st Dept 1984). "Issue finding,
judgment."
as opposed to issue determination, is the key to summary Menzel v.
Plotnick, 202 A.D.2d 558, 559 (2d Dept 1994).
50. As detailed above, there are numerous outstanding issues regarding whether
Plaintiff's actions constituted malicious prosecution/vexatious litigation, defamation and various
forms of harassment, as alleged in Defendant's Counterclaims.
51. As such, summary judgment is not warranted in favor of Plaintiff.
52. Accordingly, the Prior Motions both lacked merit, warranted denial of both and
the denial of the OSC as Plaintiff's case lacks merit.
53. Indeed, as Plaintiff notes, in Gallegos v. Elite Model Management Corp., 1
Misc.3d 200, 202 (Sup. Ct. N.Y. Cty. 2003), the moving party must have received a favorable
verdict or decision. Here, that has not happened. To the extent
Preview
FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 SUPREME COURT OF THE STATE OF NEW YORK RICHMOND COUNTY --------------------------------------------------------------------------------X DIMARZIO, INC., INDEX NO.: 151121/17 Plaintiff, AFFIRMATION IN --AGAIN A G A I N S T - SUPPORT OF ORDER TO MARINA LEVIT, SHOW CAUSE Defendant. --------------------------------------------------------------------------------X X Morris Fateha, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following, under penalty of perjury: 1. I am a member of the Law Office of Morris Fateha, counsel to defendant Marina "Defendant" Levit (the "Defendant") in the within action. I am fully familiar with the facts and circumstances that surround this matter. The basis if my familiarity arises out of conversations had with Defendant and a review of relevant documents and records. 2. I submit this affirmation in support of Defendant's instant order to show cause "Decision" seeking an order vacating the Court's decision dated May 17, 2018 (the "Decision") which, among other things, (i) refused to afford Defendant the courtesy of an adjournment of a motion before the Court for the first time and (ii) permitted judgment to be entered in favor of Plaintiff and against Defendant in a blatantly frivolous matter and for a grossly exaggerated total (the CC "OSC"). 3. Simply, the Decision was a miscarriage of justice that, as described below, must be vacated immediately. 4. When there have been no prior adjournments of a motion and, in light of the strong public policy favoring resolution of cases on their merits, the failure to allow an adjournment is improvident. See, Maniscalco v. Mount Sinai Medical Center, 128 A.D.3d 1029, 1030, 9 N.Y.S.3d 650 (2d Dept. 2015). 1 1 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 5. The same considerations are given when the need for an adjournment is based on an attorney's actual engagement. See, Warner v. Orange County Regional Medical Center, 126 A.D.3d 887, 888, 6 N.Y.S.3d 83 (2d Dept. 2015). FACTS RELEVANT TO THE MAY 17, 2018 APPEARANCE 6. Your affirmant carries a large caseload. Consistent with same, I was forced to appear on an emergency order to show cause in a case titled U.S. Bank v. Moise Garram, et al., index no. 500627/2014, in the Kings County Supreme Court, in order to stop the sale of that defendant's home. Attached hereto as Exhibit A of the signed order to show cause evidencing my appearance thereat. 7. As a result, I sent a per diem attorney to cover the motion and cross-motion before this Court, with the directive that the per diem attorney secure an adjournment. As this was the first time the motion and cross-motion were before the Court, I believed the Court's granting of same to be a matter of course. 8. I was shocked and appalled to learn that not only did the Court refuse this courtesy, but also permitted the entry of judgment against Defendant. A copy of the Decision is annexed hereto as Exhibit B. 9. Even more abhorrent than the wholly baseless causes of action which the Court took as true without Plaintiff having to provide a shred of evidence was the fact that Plaintiff's attorney has been afforded multiple courtesies, even after he completely failed to appear and did not send anyone to cover. 10. Especially relevant is that on November 16, 2017, Plaintiff failed to appear entirely but, when it made an OSC to vacate the default, same was granted by the Court. 11. Indeed, as evidenced by the printout annexed hereto as Exhibit C, this Court has adjourned appearances at least 8 other times, most at the request of Plaintiff. 2 2 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 12. Further, Defendant's opposition to the Motion and Cross-Motion papers detail these facts, which were simply ignored by the Court to the great prejudice of Defendant. 13. In addition, as further detailed below, Defendant was required to make-and made-a $70,000.00 payment to Plaintiff as a result of the criminal case brought against her. The Court erroneously failed to deduct this from the judgment amount awarded by the Court. 14. In addition, as evidenced by the W2s and other documents annexed hereto as Exhibit D, Defendant only earned $277,165, and not the $315,476.88 Plaintiff fraudulently claims of which $70,000 was paid back leaving $207, 165.88. RELEVANT BACKGROUND FACTS 15. The timeline below demonstrates the harassing nature of Plaintiff's motion practice. 16. Plaintiff made a Motion to Dismiss on July 31, 2017, which was scheduled to be heard on November 16, 2017. 17. While the Motion to Dismiss was pending, on November 7, 2017, Plaintiff made the Motion for Summary Judgment. 18. Then, after failing to appear due to his admitted own mistakes, Plaintiff's attorney made an OSC. 19. Now, amazingly, after prevailing on the underlying motion that resulted in the Order, Plaintiff made the instant Motion to reargue same. 20. While the indictments and other criminal documents do in fact exist, there are certain facts-all of which were pled in detail in the Counterclaims-that warrant denial of the Motion. 21. First, as admitted by Plaintiff in its Memorandum of Law, the criminal court imposed restitution in the amount of $70,000, which Defendant repaid. As such, it is 3 3 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 indisputable that, following the criminal matters, Defendant has made Plaintiff whole. 22. Although Defendant faced other charges, the $70,000 was the only amount determined by the criminal court that had to be paid, and Defendant did so. 23. Therefore, as more fully detailed below, the allegations against Defendant-as well as the actions taken by Plaintiff during the relevant time period-are baseless, rendering the Counterclaims viable and warranting dismissal, let alone denial of the Motion. 24. Regarding the Cross-Motion, Defendant served various discovery demands including a Request for the Production of Documents, a copy of which is annexed hereto as Exhibit E. 25. Plaintiff provided cursory responses, copies of which are annexed hereto as Exhibit F. 26. In the response, Plaintiff failed to provide responses to demands numbered 1, 2, 3, 6, 8, 9, 11, 15, 17, 18, 19, 20, 21, 22, 24, 25, 27, 29, 30, 31, 32 and 33. 27. Defendant provided a good faith letter to Plaintiff, a copy of which is annexed hereto as Exhibit G, but Plaintiff never provided any further responses. 28. As such, the Cross-Motion should be granted in its entirety. 29. Indeed, it seems clear that Plaintiff is doing everything possible to avoid discovery so that the real facts of this case-that will ultimately exonerate Defendant-are not discovered. SUMMARY OF RELEVANT INFORMATION 30. As detailed below and in the various papers, this action involves Defendant, a victim who took the blame for a scheme in which Plaintiff's principals were very much involved. servant," Indeed, Defendant was far from a "faithless having acted at her employer's behest in this wrongful scheme. 4 4 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 31. After committing allegedly wrongful acts at Plaintiff's request Defendant, a single mother, accepted a criminal plea rather than risking having to abandon her young children. 32. Further, Defendant was harassed, sexually and otherwise, by Plaintiff and its employees, principals and agents. 33. In addition, and in further support of the evidence of fraud and other acts in which Plaintiff's management was involved, and as evidenced by the accompanying affidavit of Marina Levit, upon information and belief: (i) They used corporate credit cards (VISA for Luis and American Express for Glenn Simmons) for personal use; "corporate" (ii) Glenn has a car which is used exclusively for personal use; (iii) Jolene Moore (or a name similar to that) had an affair with Larry DiMarzio, and she subsequently made a claim against him for sexual harassment. Once his wife learned of the affair, Mr. DiMarzio permitted Jolene to use corporate cards and company money for personal expenses. Eventually, the case was settled out of court, with Mr. DiMarzio paying her $20,000-25,000 through the company's ADP account. 34. For these reasons and those set forth below, the Motion should be denied in its entirety. 35. Plaintiff also lied to the Court when he filed documents stating that employees "only" had access to $8,000/year. Documentary discovery will disprove this entirely, such as tax documentations, such as W-2, 1099, etc. 36. If Larry DiMarzio pays himself as an employee of the company, then whatever benefit," money he uses for himself for personal reasons would also apply as a "fringe and it certainly wouldn't be limited to $8,000/year. 5 5 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 37. Employees who benefit from these fringe benefits would include Larry DiMarzio, his wife Gina DiMarzio, his daughter, Christiana DiMarzio., etc. As such, discovey is necessary from them, such as e-mail, text messages, physical forms, etc., things that Plaintiff has conveniently refused to provide to date. "annual" 38. Also, discovery is necessary from other employees documenting their limit of $8,000. This includes receipts, expense reports, payouts, GL breakdowns of expenditures, W-2, 1099 for any and all employees that utilize such benefits. This includes but is not limited to travel arrangements, personal credit cards written off as business expenses, dinner arrangements written off as advertising disbursements ("AD"), all purchases, and a full accounting and revision of all GL accounts. This includes Larry DiMarzio, his wife Gina DiMarzio, his daughter, Christiana DiMarzio., etc. L THE ORDER, ENTERED ON DEFAULT OF RESPONDENT, SHOULD BE VACATED 39. N.Y. C.P.L.R. 5015(a) provides the 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; a party seeking to be relieved from an order or judgment entered must demonstrate both a reasonable excuse for the default and a meritorious defense. Eugene Di Lorenzo, Inc. v. A. C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 (1986); Barasch v. Micucci, 49 N.Y.2d 594, 599 (1980). 40. The court issuing a judgment or order has the power under CPLR 5015 to relieve a party of its obligations for the reasons described therein, or under its inherent powers in the interests of justice. See Melendez v. City of New York, 271 A.D 2d 416, 706 N.Y.S.2d 132, 133 (2d Dep't 2002); Molloy v. Froyton, 119 Misc. 2d 1058, 465 N.Y.S.2d 396, 397 (Civ. Ct. Westchester Co. 1983)(quoting Ladd v. Stevenson, 112 N.Y. 325, 332 (1889)); Royster v. 6 6 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 Consolidated Edison, 114 Misc. 2d 529, 533-34, 452 N.Y.S.2d 146, 149 (Civ. Ct. N.Y. Co. 1982). See also American Cities Co., Inc. v. Stevenson, 187 Misc. 107, 110, 60 N.Y.S.2d 685, 687 (N.Y. Co. 1946)(court has inherent power to correct or amend judgments to reflect the actual facts). 41. In the matter of Roe Bros, Inc., v. Adam, 114 A.D.2d 1024, 495-N.Y.S. 2d 461 (2d Dept. 1985), the court held that "a court is authorized to vacate a default judgment pursuant to the provisions of N.Y. C.P.L.R. 5015 upon a showing of an excusable default and a defense." meritorious Id. at 462. The court further held that there is a "strong public policy in favor of resolving cases on their merits". Id. at 462. 42. The court in Anolick v. Travellers Ins. Co., 63 A.D.2d 665,404 N.Y.S.2d 689 (2dDept. 1978), held that courts must "balance all of the relevant factors in passing upon a motion to vacate a default. Id. at 690. In that case, the court considered the defendant's lack of intent to deliberately default or to abandon the defense of the action and that the defendant promptly moved to vacate its default. The court weighed the factors that the defendant 1) promptly moved to vacate its default; 2) that the plaintiff would not suffer any prejudice as a result of the delay and 3) the existence of a meritorious defense. In the Anolick case, the court found that the lower court did not exercise its discretion property in refusing to vacate the default. 43. In applying the courts discretionary consideration set forth in Anolick to the instant action, it is clear that Defendant did not deliberately default or abandon the defense of the action, but rather ended up in default due to the Court failing to award an adjournment due to Defendant's attorney having to appear on an emergency Order to Show Cause to save someone from being evicted from their home. 44. Again, aper diem attorney was sent. 7 7 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 45. The Courts have consistently adopted a liberal policy in respect to defaults, because it is well settled that as a matter of general policy, disposition of cases should be on the merits of the action and not by way of default. See, Ahmah v. Aniolowski, 28 AD.3d 692, 814 (2nd NYS.2d 666 Dept. 2006). To obtain relief on the ground of excusable default, the movant must show that the default resulted from an "excusable error". See, Zino v. Joab Taxi, Inc., ,2.020 (2nd Ad.3d 521 Dept. 2005). Therefore, under CPLR 5015, there was an excusable default in this action which warrants this court to vacate the judgment, open the default, and permit the respondent to argue the Motion and Cross-Motion. 46. The merit of Defendant's papers is detailed below. II. STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENT 47. "On a motion for summary judgment, facts must be viewed in the light most party." favorable to the non-moving Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012). Summary judgment is a drastic remedy and should only be granted where the moving party has demonstrated the absence of any triable issue of fact through sufficient evidence. Vega, 18 NY3d at 503. "The moving party's failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers." Vega, 18 NY3d at 503. "Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial." Kershaw v. Hosp. for Special Surgery, 114 AD3d 75, 82 (1st Dep't 2013). Servant" 48. Here, Plaintiff seeks summary judgment under New York's "Faithless doctrine. 49. As it pertains specifically to cases involving the Faithless Servant Doctrine, in Consolidated Edison Co. v. Zebler, 40 Misc.3d 1230(A) (Sup. Ct. N.Y. Cty. 2013), the Court held summary judgment to be: 8 8 of 19 FILED: RICHMOND COUNTY CLERK 05/18/2018 05:21 PM INDEX NO. 151121/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2018 a "drastic remedy, the procedural equivalent of a trial, and should not be granted where triable issues of fact are raised that cannot be resolved on conflicting affidavits." Epstein v. Scally, 99 A.D.2d 713, 714 (1st Dept 1984). "Issue finding, judgment." as opposed to issue determination, is the key to summary Menzel v. Plotnick, 202 A.D.2d 558, 559 (2d Dept 1994). 50. As detailed above, there are numerous outstanding issues regarding whether Plaintiff's actions constituted malicious prosecution/vexatious litigation, defamation and various forms of harassment, as alleged in Defendant's Counterclaims. 51. As such, summary judgment is not warranted in favor of Plaintiff. 52. Accordingly, the Prior Motions both lacked merit, warranted denial of both and the denial of the OSC as Plaintiff's case lacks merit. 53. Indeed, as Plaintiff notes, in Gallegos v. Elite Model Management Corp., 1 Misc.3d 200, 202 (Sup. Ct. N.Y. Cty. 2003), the moving party must have received a favorable verdict or decision. Here, that has not happened. To the extent