Recitation as required by CPLR 2219(a) of the papers considered in the review of this Motion:Papers NumberedNotice of Motion & Affts. 1Opposition 2Reply & AffidavitsSur-ReplySupplemental AffidavitsDECISION AND ORDER Upon the foregoing cited papers and after oral argument, the Decision/Order on petitioner’s motion by order to show cause to vacate the default judgment is as follows:On September 10, 2018 petitioner brought on an order to show cause to be restored to Unit #1813 at W. 2645 Brooklyn Queens Expressway, Queens, New York 11377 (hereinafter “subject premises”) to stay respondent from removing contents from the subject premises. On the return date of September 14, 2018 of the order to show cause petitioner and Naasiha Matthews, the general manager of respondent appeared. The case was adjourned until September 21, 2018 for respondent to appear with counsel. On September 21, 2018, respondent appeared in court with counsel and petitioner failed to appear. Petitioner’s order to show cause was denied due to his failure to appear.Petitioner subsequently filed the instant order to show cause show cause to restore the instant matter to the calendar, which was returnable on September 28, 2018. Petitioner asserts he was not present in court on September 21, 2018, because he had another court proceeding that morning. Petitioner states he was in Brooklyn Supreme Court on an order to show cause he brought against the City of New York to stay it from auctioning his motor vehicle based upon a lien for unpaid parking tickets. Petitioner further asserts respondent locked him out of his storage space the day before his last fully paid day. Respondent opposes petitioner’s motion on the ground that petitioner has failed to set forth both a reasonable excuse for default and a potentially meritorious defense.To prevail on a motion to vacate a default judgment pursuant to CPLR 5015(a)(1), the movant must demonstrate both a reasonable excuse for default and a potentially meritorious claim or defense. See, Adolph Schreiber Hebrew Academy of Rockland, Inc., v. Needleman, 90 AD3d 791, 934 NYS2d 810 (2nd Dept 2011); Hospital for Joint Diseases v. Dollar Rent A Car, 25 AD3d 534, 806 NYS2d 437 (2nd Dept 2006).Petitioner fails to raise a reasonable excuse for his failure to appear in court on September 21, 2018. On September 14, 2018, the date the initial order to show cause to be restored to possession was before this Court, petitioner was already aware of another proceeding he commenced to stay the City of New York from auctioning his vehicle, which was returnable September 21, 2018 in Brooklyn Supreme Court. Petitioner had submitted the Brooklyn order to show cause on August 16, 2018 and the return date on it was issued the following day, requiring the appearance in Brooklyn on September 21, 2018 (hereinafter “Brooklyn order to show cause”). In fact, petitioner knew of the Brooklyn court date for a month prior to his appearance before this Court on September 14, 2018. Yet petitioner failed to apprise this Court or respondent of the conflict at any time prior to the return date of September 21, 2018. Therefore, respondent and its counsel wasted their time with an unnecessary court appearance and this Court’s resources were wasted as well. This waste of resources could have been avoided had petitioner disclosed his scheduling conflict when he appeared before this Court on September 14, 2018.Determination of a reasonable excuse for default is in the sound discretion of the Court. See, Glauber v. Ekstein, 133 Ad2d 713, 19 NYS3d 189 (2nd Dept 2015). Matter of Gambardella v. Ortov Lighting, Inc., 278 AD2d 494, 717 NYS2d 923 (2nd Dept 2000). Petitioner has failed to establish a reasonable excuse for his default. He possessed the information regarding the date conflict but did not share this information with respondent or the Court. Since the petitioner failed to establish a reasonable excuse for his default, it is unnecessary to consider the issue of whether petitioner has asserted a potentially meritorious claim. See, See, LaSalle Bank Nat. Ass’n v. Calle, 153 AD3d 801, 61 NYS3d 104 (2nd Dept 2017).Nonetheless, petitioner lacks a potentially meritorious claim. As set forth in the affidavit of Naasiha Matthews, general manager for respondent, on May 18, 2018, petitioner entered into a written self-storage rental agreement to store his property at the subject premises at the subject building. Pursuant to the agreement and respondent’s ledger, petitioner received 1-month free usage of the subject premises and therefore, the rent was deemed paid through June 18, 2018. The payment was due on or before June 19, 2018, payable in advance of the rental due date specified.Ms. Matthews states on May 25, 2018 petitioner paid $10.00 to have 24-hour access to the subject premises, but failed to pay his monthly rent due by June 19, 2018. Petitioner was charged a $15.00 late fee in accordance with the terms of the rental agreement. Various written correspondence was sent to petitioner regarding his bill; including a first late notice on June 21, 2018 and a pre-lien letter on July 2, 2108, when the rent payment was not received. Respondent demonstrated that on July 18, 2018, petitioner was sent a late notice letter notifying him his rent was still outstanding and charging a $50.00 lien processing fee.Thereafter, on August 9, 2018, a notice of default and sale was sent to petitioner notifying him that his access to the subject premises had been terminated and the contractual lien of respondent had been imposed. In that notice, petitioner was informed his goods would be sold at auction on September 11, 2018 at 9 a.m. The notice also permitted petitioner to make payment of the sum of $739.90, representing two months rental fees together with late and miscellaneous charges, to resolve the matter. The notice of default was sent to petitioner at both his listed address in Jamaica and his emergency contact address in Rochester. Additionally, Ms. Matthews states petitioner has failed to pay any of the money owed and fees continue to accumulate.Petitioner has failed to provide any proof of payment. Thus, petitioner has failed to establish a potentially meritorious defense. Petitioner is no stranger to the court system. He admitted in open court that he has commenced and maintained in excess of 20 litigations against various storage facilitates in several counties within the City of New York. This Court is aware of petitioner’s litigious history in this County, wherein has made similar specious claims (Index#s:51153/16,12445/16,57032/17,57217/17,55874/18, 55875/18, 64031/18). These other matters by and large were dismissed for failure of the petitioner to appear or settled presumably on the basis of nuisance value. Some of these Queens County cases have had several orders to show cause wherein the petitioner repeatedly failed to appear on court dates.22 NYCRR §130-1.1, provides that in its discretion, the court may assess costs and financial sanctions against any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part. Conduct is frivolous if (c)(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (c)(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c)(3) it asserts material factual statements that are false.…In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.Petitioner was well aware of the conflict in scheduling almost a month before he appeared in this Court on September 14, 2018. At no time prior to the return date of September 21, 2018 did petitioner apprise this Court or respondent of his Brooklyn court date. The petitioner seems to view the court system as a facilitator for him to obtain a free ride for the use of respondent’s storage facility and that he should be rewarded for wasting counsels’ time and judicial resources. Not only was the commencement and maintenance of this proceeding without legitimate basis in law or fact. The petitioner’s attempt to prolong the baseless litigation by bringing on the instant order to show cause to vacate the dismissal where petitioner had no reasonable excuse for his default or a meritorious claim only compounds his frivolous conduct. This Court concludes petitioner’s conduct was frivolous and pursuant to 22 NYCRR §130-1.1, determines that respondent is entitled to an award of legal fees. Moreover, the rental agreement between the parties provides for the award of attorney’s fees reasonably incurred to enforce the rights provided for under the rental agreement.Accordingly, petitioner’s motion to vacate the default judgment is denied. The stay is vacated, and respondent may auction the contents of the subject premises immediately. Respondent is awarded attorney’s fees in the amount of $1,600.00 allocable to the two court appearances of September 21, 2018 and September 28, 2018 for $600.00 and $1,000.00 for the drafting of opposition to the instant order to show cause. Petitioner is ordered to make payment to respondent’s counsel’s law firm within 10 days of the date of this order. In the event payment is not made within 10 days, a money judgment shall be entered against petitioner upon the service of respondent’s counsel’s affirmation of noncompliance.This constitutes the Decision and Order of this Court, which is being sent to both parties by the Court.October 19, 2018
