Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause and

Affidavits /Affirmations annexed Filed 1/23/2025

Answering Affidavits/ Affirmations Filed 1/27/2025

Reply Affidavits/ Affirmations

Memoranda of Law

Other

The plaintiff, Michael Loucas Tserkezis (the "Plaintiff") commenced this action on July 5, 2022, against Audrey Tserkezis (the "Defendant"), his mother, to recover the sum of $29,867.68. The Defendant filed an answer without counterclaims on July 13, 2022. On August 31, 2022, the Defendant, now represented by counsel, filed a motion asking the Court to grant leave to amend her answer. The Amended Answer included a counterclaim in the amount of $125,000.00. That motion was granted without opposition on October 25, 2022. The Defendant filed a Motion for Summary Judgment on November 7, 2023, corrected January 8, 2024, alleging that there were no triable issues of fact.

In that motion, the Defendant admitted that she was liable for the sum of $29,867.68 owed to the Plaintiff. However, the Defendant argued that her own claim for $125,000.00 should be offset by that amount. The Plaintiff did not oppose the motion.

The Court granted the motion without opposition on February 5, 2024, and the Defendant was instructed to apply for a judgment on the counterclaim in the amount $95,218.00. The Defendant applied to the Clerk of the Court for the judgment on February 8, 2024. The judgment was not issued by the Clerk's office until November 25, 2024 (due to a backlog of work) in the amount of $95,268.00 (including $50.00 for costs & disbursements). The Defendant served and filed the Notice of Entry of the Judgment upon the attorney for the Plaintiff on December 11, 2024.

The Plaintiff moved to vacate the judgment, through new counsel, by filing an Order to Show Cause on January 23, 2025. The Defendant opposed the motion. Arguments on the motion [*2]to vacate were heard on February 24, 2024.

During oral arguments, counsel for the Plaintiff argued that the Court improperly granted the Defendant's Motion for Summary Judgment. The Plaintiff argued that there were material issues of fact which precluded this Court from issuing a judgment as a matter of law. The Plaintiff also argued that this Court's subject matter jurisdiction is limited to $50,000.00, and the judgment in favor of the Defendant exceeded that amount. Finally, the Plaintiff argues the judgment was stale and not properly served.

Counsel for the Defendant argued the nature of the Plaintiff's arguments in support of the motion were rearguing the summary judgment motion. Those arguments did not justify a motion to vacate the judgment pursuant to CPLR §5015. The Defendant's attorney opposed re-argument of the summary judgment motion because it is time-barred by CPLR §2221(d)(3). The Defendant also argued that to prevail on a motion to vacate, the movant must prove a reasonable excuse for the default and a meritorious defense, but the movant did not posit either.

1. The subject matter jurisdiction of the Court

The Court will first address the issue of the subject matter jurisdiction of the Court raised by the Plaintiff's motion. The Plaintiff argues the Court's jurisdiction is limited to $50,000.00 pursuant to the New York City Civil Court Act (hereafter referred to as CCA) §201 and therefore was not authorized to issue a judgment for the sum of $95,218.00. In actuality, the jurisdiction amount of the Court is set forth in CCA §202 for the recovery of money not to exceed $50,000.00. However, just a few sections later in the CCA the statute provides:

"The Court shall have jurisdiction of counterclaims as follows:

(b) Of any counterclaim for money only, without regard to amount." NYC CCA §208(b)

Therefore, the Court finds that subject matter jurisdiction exists over the Defendant's counterclaim to authorize awarding a judgment in excess of $50,000.00 pursuant to the NYC Civil Court Act.

2. The motion to vacate the judgment

The Plaintiff moves pursuant to CPLR §5015 for an order vacating the judgment awarded to the Defendant on the counterclaim. That section provides:

"(a) 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,

(2) Newly-discovered evidence,

(3) Fraud, misrepresentation or other misconduct of an adverse party,

(4) Lack of jurisdiction to render the judgment,

(5) Reversal, modification or vacatur of a prior order upon which it is based.

CPLR §5015(a)

The Defendant, in opposition to this motion, argues the motion to vacate the judgement is untimely, because the motion does not address any of the criteria of CPLR §5015, but rather is a [*3]motion to reargue the summary judgment motion pursuant to CPLR §2221.

In this matter, the notice of entry of the decision in favor of the Defendant was served on the Plaintiff's prior counsel on February 8, 2024. The judgment was not issued by the Clerk's office until November 25, 2024. The Notice of Entry of the Judgment was filed and served upon the attorney for the Plaintiff on December 11, 2024. On January 23, 2025, the Plaintiff's new attorney moved to vacate the judgment pursuant to CPLR §5015, less than two months after the judgment was entered. Therefore, the Court finds that the Plaintiff's motion to vacate the judgment is timely.

The question now before this Court is whether the Plaintiff's motion meets the criteria to vacate the judgment pursuant to CPLR §5015. The first possible ground for the motion is for excusable default. The only possible "default" that could be alleged by the Plaintiff in this matter was his failure to oppose the motion for summary judgment. However, Mr. Tzerkezis' affidavit in support of the motion does not provide any facts to support an excuse for his failure to oppose the motion. He says, "Said motion was granted because my former attorney failed to file opposition, despite the fact there were outstanding issue of fact . . . "^[FN1] He does not state what those issues of fact are, nor does he provide an explanation of why his attorney did not oppose the motion.

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. (Ki Tae Kim v. Bishop, 156 AD3d 776, 777 [2d Dept 2017], see also Paul v. Weatherwax, 146 AD3d 792 [2d Dept 2017], Credit Bureau of New York, Inc. v. Rapid Realty 95, Inc., 137 AD3d 841 [2d Dept 2016], J & J Alarcon Realty Corp. v. Plantains Rest., Inc., 123 AD3d 886 [2d Dept 2014].) Counsel's mere neglect does not constitute a reasonable excuse (Bishop at 777, 778, see also Onewest Bank, FSB v. Singer, 153 AD3d 714 [2d Dept 2017]).

A Notice of Appearance was filed by Gladys Mozo, Esq., of Mozo Law on behalf of the Plaintiff on October 26, 2022. A Consent to Change Attorney to Corash & Hollender, P.C., was not filed until January 23, 2025. At all times in the interim, there was never a notification to the Court that Ms. Mozo ceased her representation. The Consent to Change Attorney filed January 28, 2025, was signed by Ms. Mozo and dated January 23, 2025. This implies she was still the attorney of record until that date when she was substituted by Corash & Hollander.

The Plaintiff did not offer a reasonable excuse or explanation in the documents supporting the motion, nor at oral argument, why the Plaintiff did not oppose the summary judgment motion. Therefore, the Plaintiff did not meet even the first part of the two requirements of CPLR §5015(a)(1)

Hypothetically, if the Plaintiff argued the reason for the failure to oppose the summary judgment motion was the neglect of the Plaintiff's former counsel, that is insufficient to warrant vacating the Court's decision. The Appellate Division has ruled,

"Although law office failure may constitute a reasonable excuse for a default (see CPLR §2005), such an excuse must be supported by a detailed and credible explanation for the law office failure alleged to have caused the default (citations omitted). Mere neglect is not a reasonable excuse (HSBC Bank USA, National Association v. Joseph, 209 AD3d [*4]633 [Second Dept., 2022] citing, Campbell v TPK Heating, LTD, 181 AD3d 642, Seaman v. New York Univ., 175 AD3d 1578) and where there is a pattern of default and neglect, the attorney's neglect can be imputed to the client." (HSBC Bank USA, National Association v. Joseph, 209 AD3d 633 [Second Dept., 2022] citing, New York Vein Center, LLC v Dovlaryan, 162 AD3d 1056).

Without offering any reasonable explanation for the Plaintiff's failure to oppose the summary judgment motion, this Court need not address the second requirement of the motion to vacate, namely whether the Plaintiff has a meritorious defense to the counterclaim pursuant to CPLR §5015(a)(1).

The Plaintiff has not offered any facts or arguments to support any of the other grounds for the motion to vacate, namely: newly discovered evidence; fraud, misrepresentation or misconduct; lack of jurisdiction; or reversal, modification or vacatur of a prior judgment or order. Therefore, the motion to vacate fails on those grounds as well.

3. The judgment was not timely entered or served

The Plaintiff's motion to vacate argues the judgment was not properly entered. The Plaintiff alleges both the notice of entry of the decision, as well as the notice of the entry of the judgment, were not timely served upon the Plaintiff pursuant to the Rules of the Court. The Plaintiff incorrectly cites 22 NYCRR 202.48 as governing the entry of a judgment, which are the rules of the Rules applying to the New York State Supreme Court and County Courts. However, those rules do not apply to this Court.

The correct rules are those applying to the NYC Civil Court 22 NYCRR § 208, and specifically §208.33. That rule provides that:

"proposed orders or judgments, . . . must be submitted for signature . . . within 60 days after the signing and filing of the decision directing that the order be settled or submitted" 22 NYCRR §208.33(a).

In this matter the Court's file shows the Defendant's attorney served the Plaintiff's attorney with the notice of entry of the decision (dated February 8, 2024) within 3 days after the decision, on February 5, 2024. The notice of entry of the judgment was served on Plaintiff's attorney within 16 days (on December 11, 2024) after the judgment was entered by the Clerk of the Court on November 25, 2024. All of these facts were available to the Plaintiff from a simple review of the Courts records. The Court finds both notices of entry were timely filed pursuant to 22 NYCRR §208.22(a).

Furthermore, since Ms. Mozo (Plaintiff's first attorney) was the attorney of record for the Plaintiff until January 23, 2025, the Defendant properly served both notices of entry upon Plaintiff's attorney (CPLR §2103). The issue of whether the Plaintiff was notified by his attorney was not raised by his motion and was not required pursuant to the statute (CPLR §210, §2020).

Therefore, the argument that the judgment was not timely entered or properly served fails.

4. The Court retains its discretionary power to vacate the judgment in the interest of substantial justice

As discussed above, the Plaintiff did not make a motion to reargue the prior decision, nor did the Plaintiff file an appeal of the Court's decision. The Plaintiff now makes this motion to ask a different judge of this Court to vacate a decision of the prior judge (no longer sitting in this Court) more than 1 year after the decision was issued on the grounds of substantial justice.

The Court has considered the opinion of the NY Court of Appeals in Woodson v Mendon Leasing Corporation, 100 NY2d 62 (Court of Appeals 2003) in weighing the interests of justice in this matter. In that decision, the Court of Appeals said, "A court may vacate its own judgment for sufficient reason and in the interests of substantial justice." (Id., Woodson at P. 68) However, this Court does not find the Plaintiff has justified such a substantial relief.

The Court recognizes the affirmation of the Plaintiff's attorney in support of the motion raises issues regarding the admissibility of the evidence considered by the Court in the summary judgment motion. However, this Court finds those issues do not rise to a level of injustice in this circumstance. Whether the Plaintiff could have defeated the summary judgment motion if it was opposed is not an injustice. For the Court to invoke the extraordinary relief requested, the Plaintiff should demonstrate that his mother, the Defendant, did something so egregious to warrant setting aside the procedures set forth in the Civil Practice Law and Rules to have a second opportunity to litigate the matter. Rather, the Court sees the Plaintiff's apathy as the basis for his plight. Therefore, the Court does not see a justification for vacating the judgment.

Accordingly, the Plaintiff's motion to vacate the judgment is DENIED. The judgment against the Plaintiff remains in effect and any stay of the execution of the judgment is lifted.

This is the decision and order of the Court.