Preview
FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/11/2023
At a Special Term of the Supreme Court
held in and for the County of Erie on the
24th day of March 2023.
Hon. Deborah A. Chimes, J.S.C.
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
___________________________________________
RUPP BAASE PFALZGRAF CUNNINGHAM LLC,
Plaintiff,
v.
Index No.: 801802/2020
STACEY PYNN,
Defendant.
___________________________________________
ORDER
Plaintiff, Rupp Pfalzgraf LLC f/k/a Rupp Baase Pfalzgraf Cunningham LLC
(“Rupp Pfalzgraf”), has moved to compel defendant, Stacey Pynn (“Ms. Pynn”) to comply with a
subpoena duces tecum and to sit for a deposition. In opposition, Ms. Pynn, filed a motion to
vacate and dismiss. In support of its application, plaintiff submitted a Notice of Motion dated
October 11, 2022; and the Affidavit of Marco Cercone, Esq., sworn to October 11, 2022,
together with attached exhibits. In opposition, Ms. Pynn submitted the Notice of Motion dated
February 7, 2023; and the Affidavit of Stacey Pynn, sworn to February 7, 2023, together with
attached exhibits. In opposition to Ms. Pynn’s motion, Rupp Pfalzgraf filed the Affidavit of
Christopher Sasiadek, Esq., sworn to February 22, 2023. The Court heard oral arguments on the
motions on February 27, 2023. Following oral arguments, the Court requested the parties
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provide their opinions on the applicability of 11 U.S.C.A. §362(b)(2)(A). Ms. Pynn responded
with a letter to the Court dated March 5, 2023; the Affidavit of Stacey Pynn, sworn to on
March 17, 2023, with attached exhibits; and letters dated March 18, 2023 and March 20, 2023.
Rupp Pfalzgraf responded to the Court’s inquiry with the Affidavit of Christopher Sasiadek
sworn to March 20, 2023, with attached exhibits.
NOW, upon reading the foregoing papers, and the Court having heard oral
argument on February 27, 2023, it hereby is
ORDERED that the plaintiff’s motion to compel the defendant’s compliance with
the subpoena and subpoena duces tecum served upon her on July 26, 2022 is granted in its
entirety; and it is further
ORDERED that the defendant will produce to the plaintiff those documents
demanded in plaintiff’s subpoena and subpoena duces tecum within 10 days of service of the
notice of entry of this order; and it is further
ORDERED that the defendant will appear for deposition at the offices of
Rupp Pfalzgraf within 60 days of service of the notice of entry of this order; and it is further
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ORDERED that the defendant’s failure to comply with the forgoing will
constitute contempt of court; and it is further
ORDERED that the defendant’s motion to vacate judgment and dismiss case is
denied in its entirety.
Dated: April 10, 2023
Hon. Deborah A. Chimes, J.S.C.
.
ENTERED:
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_______________________________________________
RUPP BAASE PFALZGRAF CUNNINGHAM LLC,
Plaintiff,
DECISION
v. Index No. 801802/2020
STACEY PYNN,
Defendant.
_______________________________________________
Plaintiff, Rupp, Baase, Pfalzgraf and Cunningham, moved pursuant to CPLR 2308(b) to
compel defendant, Stacey Pynn, to comply with the subpoena and subpoena duces tecum served
on the defendant. (NYSCEF 004). Defendant opposed by way of a cross-motion to vacate a
previous judgment and dismiss plaintiff’s claim under CPLR 3211. (NYSCEF 005). Defendant
improperly cites to “CPLR 440.10” to support her motion to vacate. The proper reference should
be CPLR 5015, titled “Relief from judgment or order” and the Court will consider the motion to
vacate under that section.
By way of background, defendant petitioned for Chapter 13 for bankruptcy on May 23,
2017. The plan was confirmed October 2, 2018. On September 27, 2017, defendant retained
plaintiff to represent her in relation to a family-law matter. Plaintiff performed legal services
which went unpaid. Plaintiff commenced an action by filing a summons and complaint and
moved for summary judgment. Defendant opposed the motion arguing in part for a
disgorgement of attorney fees. A hearing was held on the issue of attorney fees and whether
there were duplicate charges by two legal entities. After a hearing the previous Court found
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plaintiff was entitled to attorney fees in the amount of $20,045.93, plus interest. An order of
judgment was entered on November 5, 2021.
In an attempt to enforce its’s judgment, plaintiff served defendant with a subpoena and
subpoena duces tecum. Defendant failed to comply with both, and plaintiff now seeks an order
pursuant to CPLR 2308(b) to compel compliance.
By way of cross-motion, defendant seeks to vacate the prior judgment.
CPLR 5015(a) states “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 upon the ground of:
1. Excusable default, if such motion is made within one year after service of a copy of
the judgment or order with written notice of its entry upon the moving party…
2. Newly discovered evidence which, if introduced at the trial, would probably have
produced a different result and which could not have been discovered in time to move
for a new trial…or
3. Fraud, misrepresentation, or other misconduct of an adverse party;
4. Lack of jurisdiction to render the judgment; or reversal, modification or vacatur or a
prior judgment or order upon which it is based.”
In reviewing defendant’s submissions and the procedural history, defendant has not
established an excusable default, has not shown the court newly discovered evidence, or that the
judgment was obtained through fraud, misrepresentation or other misconduct. Further, as this
matter relates to a breach of contract claim, jurisdiction to render judgment was properly before
the Supreme Court, Erie County and there has been no showing that the order rendered in the
summary judgment motion, which was the basis for the order of judgment, was reversed,
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modified or vacated. Consequently, there remains one ground to vacate, and that is a court may
relieve a party from a judgment “upon such terms as may be just”.
Defendant argues in part for a disgorgement of the attorney fees and that she was billed
for the same legal services by two septate entities. The Court denies vacating judgment on that
ground. The issues were previously litigated before the prior Court at which time defendant had
an opportunity to litigate the issues. The matters were decided by a prior Court Order and
collateral estoppel applies. (See, Chiara v Town of New Castle, 61 AD 3d 915 [2nd Dept.
2009]).
Defendant also argues it was improper for the fees to be incurred, judgement to be
rendered and for plaintiff to attempt to collect on the judgment due to an automatic stay issued in
her bankruptcy proceeding. However, defendant retained plaintiff to represent her in a family
court matter post-bankruptcy petition. The automatic stay does not apply to post-petition debt.
(See, In re Galgano 358 BR 90, 97-98 [Bankr. SDNY 2007]).
There being no valid basis to vacate the judgement in the interest of justice., defendant’s
cross-motion brought pursuant to CPLR 5015 is denied.
Plaintiff seeks an order compelling defendant to comply with the issued subpoenas. The
Court finds the subpoenas were authorized and properly served. Plaintiff’s motion to compel
compliance is granted.
For the reasons stated above, defendant’s cross-motion is denied. and plaintiff’s motion is
granted. Defendant is to appear for a deposition pursuant to the issued subpoena and to comply
with the subpoena duces tecum previously served on defendant.
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Counsel for plaintiff is to submit an order on both motions within 30 days, attaching a
copy of the Court’s Decision to the order.
DATED: March ____,
24 2023
Buffalo, New York
_____________________________
Hon. Deborah A. Chimes, J.S.C.
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Preview
FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/11/2023 At a Special Term of the Supreme Court held in and for the County of Erie on the 24th day of March 2023. Hon. Deborah A. Chimes, J.S.C. STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ___________________________________________ RUPP BAASE PFALZGRAF CUNNINGHAM LLC, Plaintiff, v. Index No.: 801802/2020 STACEY PYNN, Defendant. ___________________________________________ ORDER Plaintiff, Rupp Pfalzgraf LLC f/k/a Rupp Baase Pfalzgraf Cunningham LLC (“Rupp Pfalzgraf”), has moved to compel defendant, Stacey Pynn (“Ms. Pynn”) to comply with a subpoena duces tecum and to sit for a deposition. In opposition, Ms. Pynn, filed a motion to vacate and dismiss. In support of its application, plaintiff submitted a Notice of Motion dated October 11, 2022; and the Affidavit of Marco Cercone, Esq., sworn to October 11, 2022, together with attached exhibits. In opposition, Ms. Pynn submitted the Notice of Motion dated February 7, 2023; and the Affidavit of Stacey Pynn, sworn to February 7, 2023, together with attached exhibits. In opposition to Ms. Pynn’s motion, Rupp Pfalzgraf filed the Affidavit of Christopher Sasiadek, Esq., sworn to February 22, 2023. The Court heard oral arguments on the motions on February 27, 2023. Following oral arguments, the Court requested the parties 1 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/11/2023 provide their opinions on the applicability of 11 U.S.C.A. §362(b)(2)(A). Ms. Pynn responded with a letter to the Court dated March 5, 2023; the Affidavit of Stacey Pynn, sworn to on March 17, 2023, with attached exhibits; and letters dated March 18, 2023 and March 20, 2023. Rupp Pfalzgraf responded to the Court’s inquiry with the Affidavit of Christopher Sasiadek sworn to March 20, 2023, with attached exhibits. NOW, upon reading the foregoing papers, and the Court having heard oral argument on February 27, 2023, it hereby is ORDERED that the plaintiff’s motion to compel the defendant’s compliance with the subpoena and subpoena duces tecum served upon her on July 26, 2022 is granted in its entirety; and it is further ORDERED that the defendant will produce to the plaintiff those documents demanded in plaintiff’s subpoena and subpoena duces tecum within 10 days of service of the notice of entry of this order; and it is further ORDERED that the defendant will appear for deposition at the offices of Rupp Pfalzgraf within 60 days of service of the notice of entry of this order; and it is further -2- 2 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/11/2023 ORDERED that the defendant’s failure to comply with the forgoing will constitute contempt of court; and it is further ORDERED that the defendant’s motion to vacate judgment and dismiss case is denied in its entirety. Dated: April 10, 2023 Hon. Deborah A. Chimes, J.S.C. . ENTERED: -3- 3 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 105 RECEIVED NYSCEF: 04/11/2023 03/27/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _______________________________________________ RUPP BAASE PFALZGRAF CUNNINGHAM LLC, Plaintiff, DECISION v. Index No. 801802/2020 STACEY PYNN, Defendant. _______________________________________________ Plaintiff, Rupp, Baase, Pfalzgraf and Cunningham, moved pursuant to CPLR 2308(b) to compel defendant, Stacey Pynn, to comply with the subpoena and subpoena duces tecum served on the defendant. (NYSCEF 004). Defendant opposed by way of a cross-motion to vacate a previous judgment and dismiss plaintiff’s claim under CPLR 3211. (NYSCEF 005). Defendant improperly cites to “CPLR 440.10” to support her motion to vacate. The proper reference should be CPLR 5015, titled “Relief from judgment or order” and the Court will consider the motion to vacate under that section. By way of background, defendant petitioned for Chapter 13 for bankruptcy on May 23, 2017. The plan was confirmed October 2, 2018. On September 27, 2017, defendant retained plaintiff to represent her in relation to a family-law matter. Plaintiff performed legal services which went unpaid. Plaintiff commenced an action by filing a summons and complaint and moved for summary judgment. Defendant opposed the motion arguing in part for a disgorgement of attorney fees. A hearing was held on the issue of attorney fees and whether there were duplicate charges by two legal entities. After a hearing the previous Court found 4 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 105 RECEIVED NYSCEF: 04/11/2023 03/27/2023 plaintiff was entitled to attorney fees in the amount of $20,045.93, plus interest. An order of judgment was entered on November 5, 2021. In an attempt to enforce its’s judgment, plaintiff served defendant with a subpoena and subpoena duces tecum. Defendant failed to comply with both, and plaintiff now seeks an order pursuant to CPLR 2308(b) to compel compliance. By way of cross-motion, defendant seeks to vacate the prior judgment. CPLR 5015(a) states “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 upon the ground of: 1. Excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party… 2. Newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial…or 3. Fraud, misrepresentation, or other misconduct of an adverse party; 4. Lack of jurisdiction to render the judgment; or reversal, modification or vacatur or a prior judgment or order upon which it is based.” In reviewing defendant’s submissions and the procedural history, defendant has not established an excusable default, has not shown the court newly discovered evidence, or that the judgment was obtained through fraud, misrepresentation or other misconduct. Further, as this matter relates to a breach of contract claim, jurisdiction to render judgment was properly before the Supreme Court, Erie County and there has been no showing that the order rendered in the summary judgment motion, which was the basis for the order of judgment, was reversed, 2 5 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 105 RECEIVED NYSCEF: 04/11/2023 03/27/2023 modified or vacated. Consequently, there remains one ground to vacate, and that is a court may relieve a party from a judgment “upon such terms as may be just”. Defendant argues in part for a disgorgement of the attorney fees and that she was billed for the same legal services by two septate entities. The Court denies vacating judgment on that ground. The issues were previously litigated before the prior Court at which time defendant had an opportunity to litigate the issues. The matters were decided by a prior Court Order and collateral estoppel applies. (See, Chiara v Town of New Castle, 61 AD 3d 915 [2nd Dept. 2009]). Defendant also argues it was improper for the fees to be incurred, judgement to be rendered and for plaintiff to attempt to collect on the judgment due to an automatic stay issued in her bankruptcy proceeding. However, defendant retained plaintiff to represent her in a family court matter post-bankruptcy petition. The automatic stay does not apply to post-petition debt. (See, In re Galgano 358 BR 90, 97-98 [Bankr. SDNY 2007]). There being no valid basis to vacate the judgement in the interest of justice., defendant’s cross-motion brought pursuant to CPLR 5015 is denied. Plaintiff seeks an order compelling defendant to comply with the issued subpoenas. The Court finds the subpoenas were authorized and properly served. Plaintiff’s motion to compel compliance is granted. For the reasons stated above, defendant’s cross-motion is denied. and plaintiff’s motion is granted. Defendant is to appear for a deposition pursuant to the issued subpoena and to comply with the subpoena duces tecum previously served on defendant. 3 6 of 7 FILED: ERIE COUNTY CLERK 04/11/2023 03:56 PM INDEX NO. 801802/2020 NYSCEF DOC. NO. 110 105 RECEIVED NYSCEF: 04/11/2023 03/27/2023 Counsel for plaintiff is to submit an order on both motions within 30 days, attaching a copy of the Court’s Decision to the order. DATED: March ____, 24 2023 Buffalo, New York _____________________________ Hon. Deborah A. Chimes, J.S.C. 4 7 of 7