Shaw v Sageer

City Court of Utica, Oneida County

Decided on May 19, 2026

Index No. CV-000094-26

F. Christopher Giruzzi, J.

On January 21, 2026, Albert Shaw (hereinafter referred to as "Plaintiff") filed a summons and complaint against Santo Sageer (hereinafter referred to as "Defendant") seeking $13,805.81 for unpaid labor. Namely, Plaintiff argues he performed home improvement projects at a property owned by Defendant, for which Defendant never paid. Plaintiff personally served Defendant with a copy of the filing on January 28, 2026.

On February 17, 2026, Defendant filed an answer and counterclaims. Plaintiff then filed a reply to the counterclaims with a notice of rejection on February 23, 2026, arguing the Defendant's answer was untimely.

Thereafter, the Court received several additional filings, including:

• Notice of Motion and Memorandum of Law filed by Defendant on March 13, 2026;

• Affirmation and Memorandum of Law filed by Plaintiff on March 31, 2026; and

• Reply Affirmation filed by Defendant on April 3, 2026.

The Court held oral arguments on April 9, 2026. On that same date, Plaintiff submitted a filing containing case law he cited at oral arguments.

The matter was initially assigned to the Honorable Grant J. Garramone, until the Court discovered a potential conflict of interest. Honorable F. Christopher Giruzzi took up the matter immediately.

Now, following extensive review of the pleadings and arguments of the parties, and after due deliberation and consideration, the Court finds as follows:

I. TIMELINESS OF DEFENDANT'S ANSWER

First, the Court will address the issue of the timeliness of Defendant's answer, and whether the Court should compel Plaintiff to accept the same.

Neither party contests that the Defendant filed its answer twenty (20) days after service of the Summons and Complaint. Plaintiff argues Defendant failed to timely answer pursuant to the Uniform City Court Act for Courts Outside of NYC (UCCA) § 402, which provides a ten (10) day time limit for defendants to file an answer. The Plaintiff noted this time limit in the Summons. As a result, Plaintiff argues the Court must reject Defendant's answer as untimely and grant a default judgment in favor of the Plaintiff.

Defendant asserts law office error as the reason for his failure to file the answer within ten days. Defendant states that upon receiving a copy of the Summons and Complaint, his office staff unintentionally miscalculated the time to answer as twenty (20) days pursuant to CPLR § 3012(a). Defendant asks the Court to consider the delay reasonable under the circumstances and further asks the Court to decide the case on the merits, rather than through issuance of a default judgment. Plaintiff, however, asserts "law office failure" fails as a sufficient excuse to permit the late filing of an answer.

Two sections of the CPLR are specifically relevant to this issue.

Pursuant to CPLR § 3012(d):

Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.

Additionally, CPLR § 2005 provides:

Excusable delay or default. Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (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.

Courts favor resolving matters on their merits, and the law grants them broad discretion in assessing whether a reasonable excuse exists for a late filing. In making this determination, the court may consider several factors, including the length of the delay, whether the conduct was willful, and the degree of potential prejudice to the opposing party. Rickert v. Chestara, 56 AD3d 941 (3rd Dep't 2008).

Further, a court may compel the acceptance of an untimely pleading where there is (1) [*2]reasonable excuse for the delay, and (2) a potentially meritorious defense. Gribbins v. Rushford Lake Recreation Dist., 96 AD3d 1369 (4th Dep't 2012).

Where "law office failure" causes the underlying delay, courts have found that isolated neglect, in the absence of prejudice to the opposing party, should not deprive a party of their day in court. Pollack v. Eskander 594 N.Y.S.2d 510 (4th Dep't 1993).

Here, the Court permits Defendant's untimely answer. The Court concludes Defendant's delay resulted from a legitimate error in calculation. The delay constituted a mere ten days and consisted of one isolated occurrence in a plethora of pleadings so far filed in this matter. Further, Plaintiff has failed to demonstrate any willful conduct by the Defendant in its delay, and has similarly failed to allege any prejudice resulting from it. Lastly, the Defendant has alleged several potentially meritorious defenses in his answer.

As such, the Court grants Defendant's motion to compel Defendant's answer, and denies Plaintiff's motion for a default judgment.

II. MOTION TO DISQUALIFY COUNSEL

Next, the Court will address Defendant's motion to disqualify Plaintiff's counsel.

On January 6, 2026, counsel for both parties engaged in email communications whereby Defendant's counsel alleged misconduct by Plaintiff's counsel. On February 17, 2026, in Defendant's answer and counterclaims, he included as an affirmative defense (see ¶ 63) the argument that Plaintiff's attorney inserted himself in the case as a witness and therefore must be removed as counsel. On March 13, 2026, Defendant filed a formal motion seeking to disqualify Plaintiff's counsel.

The disqualification of an attorney is a matter which rests within the sound discretion of the court. Jozefik v. Jozefik, 89 AD3d 1489 (4th Dep't 2011).

Motions for disqualification carry a heavy burden. Lake v. Kaleida Health, 60 AD3d 1469 (4th Dep't. 2009). The moving party must demonstrate: (1) the testimony of the opposing party's counsel is necessary to the case, and (2) such testimony would be prejudicial to the opposing party. Homar v. American Home Mortg. Acceptance, Inc., 119 AD3d 901 (2d Dep't 2014). The moving party must specifically demonstrate the necessity of an attorney's testimony. The mere possibility that the attorney may be called as a witness, or where such testimony will relate to an uncontested issue, does not suffice as grounds for disqualification. Print-Art Services, N.J., Inc. v. Longacre Press, Inc., 193 AD2d 556 (1st Dep't 1993).

In this case, Defendant's motion for disqualification rests on the fact that Plaintiff's counsel communicated with the Defendant prior to commencement of this action, demanding Defendant pay Plaintiff's client for labor completed at Defendant's property. Defense counsel claims these communications made Plaintiff's counsel a necessary witness to the case. The Court disagrees. Our system requires attorneys to zealously represent their clients. Zealous representation often includes pre-action demands for payment from unrepresented individuals. [*3]The Court detects no impropriety in any communication prior to the Defendant engaging counsel for its legal representation. All demands appear contextually appropriate. Such demands encourage settlement and support judicial economy. If Courts gave credence to the inauspicious notion that a written demand automatically transforms an attorney into a witness, an entire ecosystem of debt collection would grind to a halt. The very necessity of this paragraph should stand as a monument to how judicial economy suffers when counsel engages in overreach.

Therefore, Defendant's motion to disqualify Plaintiff's counsel is denied.

III. MOTION TO DISMISS CAUSE OF ACTION — FRAUD

The Defendant moves to dismiss Plaintiff's third cause of action alleging fraud.

Defendant alleges the case of action is duplicative of Plaintiff's cause of action for breach of contract. Additionally, Defendant argues Plaintiff fails to plead fraud with particularity.

Pursuant to CPLR § 3016(b):

Fraud or mistake. Where a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.

A claim for fraud must allege: (1) defendants made misrepresentations of material existing fact; (2) which were false and known to be false; (3) for the purpose of inducing plaintiff's reliance on those misrepresentations; (4) that plaintiff justifiably or reasonably relied on the alleged misrepresentations; and (5) plaintiff suffered compensable damages by reason thereof. Shahid v. Ridgewood Bushwick Senior Citizens Council, Inc., 181 AD3d 744, 117 N.Y.S.3d 877 (2d Dep't 2020);

Allegations of fraud set forth solely by "information and belief," without identifying the sources of those allegations, do not meet the statutory pleading requirements. Carlyle, LLC v. Quik Park 1633 Garage LLC, 75 N.Y.S.3d 139 (1st Dep't 2018); DDJ Management, LLC v. Rhone Group LLC., 911 N.Y.S.2d 7 (1st Dep't 2010).

Conversely, when fraud allegations made on information and belief provide enough detail to put each defendant on notice of the specific misconduct alleged, they are sufficient to withstand dismissal. Allenby, LLC v. Credit Suisse, AG, 134 AD3d 577 (1st Dep't 2015). The particularity requirement should not be applied so rigidly as to bar an otherwise viable fraud claim in situations where the plaintiff cannot reasonably provide detailed circumstances—such as commonly occurs before discovery. 477 Realty, L.L.C. v. Wing Soho, LLC, 234 AD3d 469 (1st Dep't 2025).

Here, the Court finds that the Plaintiff has met this standard through the volume and specificity of the factual allegations contained in the Complaint. Although the Defendant correctly notes that many of the allegations are made on "information and belief," they are pled [*4]with enough detail to give the Defendant adequate notice of the claims asserted against him.

Therefore, the Court denies Defendant's motion to dismiss Plaintiff's third cause of action.

IV. MOTION TO DISMISS CAUSE OF ACTION - UNJUST ENRICHMENT

Finally, the Defendant moves to dismiss Plaintiff's second cause of action, alleging unjust enrichment. Specifically, Defendant argues such a claim is unavailable where an express contract governs.

At its base, a claim for unjust enrichment relies on the assertion that a defendant has obtained a benefit for which a plaintiff should receive payment. Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 (2011). Such a claim is only available where there is no cognizable claim for breach of contract, but the circumstances otherwise "create an equitable obligation running from the defendant to the plaintiff." Markwica v Davis, 64 NY2d 38 (1984).

In other words, where a plaintiff bases its claim on a breach of contract, the plaintiff cannot recover under an unjust enrichment theory. However, the plaintiff may plead unjust enrichment as an alternative claim in case the court determines that the parties did not form a contract. Maya NY, LLC v Hagler, 106 AD3d 583 (1st Dep't 2013).

Here, in the Complaint, Plaintiff explicitly included the claim of unjust enrichment in the event the Court finds no contract existed between the parties. (see ¶ 51). Further, although the parties appear to agree in their submissions that no written contract existed, the Court finds that a question of fact remains as to whether the parties formed any contract, written or otherwise. Accordingly, the Court declines to strike down the alternative claim for unjust enrichment at this stage.

As such, the Court denies Defendant's motion to dismiss Plaintiff's second cause of action for unjust enrichment.

A separate scheduling order will follow.

This constitutes the Decision and Order of the Court.

Dated: May 19, 2026

HON. F. CHRISTOPHER GIRUZZI

UTICA CITY COURT JUDGE

ENTER