RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS ORDER TO SHOW CAUSE. PAPERS NUMBERED ORDER TO SHOW CAUSE AND ANNEXED AFFIDAVITS 1 AFFIRMATION IN OPPOSITION 2 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS ORDER TO SHOW CAUSE IS AS FOLLOWS: Movant-Defendant, Sulu Mussabekova (Mussabekova), pro se litigant, filed her Order to Show Cause dated February 10, 2020, seeking vacatur of default judgment after inquest entered on January 8, 2020 due to her failure to appear at trial, alleging she was never served any notice to appear at trial. The question before this Court is whether Mussabekova has satisfied the statutory requirements to vacate a default judgment pursuant to Civil Practice and Law Rules §§317 and 5015 where the Clerk of the Court failed to comply with New York City Civil Court Act §1301. PROCEDURAL HISTORY The Court notes the parties have an extensive procedural history before this Court with the relevant portions in determining this Order to Show Cause stated herein. Plaintiff, Bill Siegel (Siegel), commenced this breach of contract action by filing a summons and complaint against Defendants, Mussabekova and Mark Samoylov (on or about April 10, 2013), for $11,633.75 plus interest from October 11, 2011, alleging Defendants, as former tenants, failed to pay rent and caused damage to the apartment. On November 20, 2014, the parties appeared for a bench trial (Dear, J.) and Plaintiff was awarded $11,633.75 plus interest with judgment entered November 28, 2014. At trial, Siegel was represented by his attorney, the law firm of Gutzman, Mintz, Bake & Sonnenfeldt, P.C., and both Defendants appeared pro se. After trial, Mussabekova, appealed the trial court’s decision pro se. The Appellate Term reversed the trial court’s decision on January 6, 2017 and remanded the matter back to Civil Court for a new trial. Subsequently, on September 13, 2018, Plaintiff’s attorney filed and served a notice of trial with proof of service to both Defendants, which was rejected by the Court and restored to the trial calendar January 7, 2019. Mussabekova failed to appear for trial on two separate occasions, April 9 and July 10, 2019. Shortly thereafter, an inquest was held on November 19, 2019 with the Court determining Plaintiff met its burden of proof and Siegel was awarded the amount sued for in his complaint plus interest. Siegel’s attorney served its notice of judgment upon Defendants on November 20, 2019 and the notice of entry of judgment (dated January 8, 2020) in the amount of $20,744.78 including interest from October 2011 with all notices served upon Mussabekova at 2147 60th Street, Apt 2F, Brooklyn New York 11204 (see Exhibit 9, Plaintiff’s affirmation in opposition). The Court’s trial card, dated January 7, 2019 for an inquest held on November 19, 2019, indicates Mussabekova is represented by attorney Yorham Nachimovsky, PLLC located at 299 Broadway Ste 605, New York New York 10007 (see Exhibit 8, Plaintiff’s affirmation in opposition). The Court’s Civil Judgment file card, dated January 8, 2020, has Mussabekova’s address listed at 2147 60th Street, Apt 2F, Brooklyn New York 11204 (see Exhibit 10, Plaintiff’s affirmation in opposition). Finally, the Court’s Case summary card denotes Mussabekova is represented by Yorham Nachimovsky, PLLC located at 299 Broadway Ste 605, New York New York 10007. ANALYSIS Movant-Defendant, Mussabekova, moved this Court on February 10, 2020 to vacate her default in appearing at trial immediately after the default judgment was granted on January 8, 2020. Also, she filed two additional Orders to Show Cause on September 15 and September 24, 2020 seeking vacatur of the default judgment and the restraining lien against her bank account arguing again that she did not receive papers since she moved and she was pregnant. With COVID-19 straining the Court’s resources and limited access to litigation records, the decision is now rendered with all relevant arguments and papers received. Plaintiff, in opposition, argues that Defendant has not satisfied the requirements of CPLR 5015 (a) (1) and is not entitled to vacatur of her default in appearing at trial. To vacate a default judgment, CPLR 5015 (a) (1) requires the movant to provide a reasonable excuse, foremost, for its default in appearing and a meritorious defense (This Court must first determine whether Mussabekeova provided a reasonable excuse for failing to appear at trial before it can entertain the movant’s defense (Levi v. Levi, 46 AD3d 519, 848 NYS2d 228 [2d Dept 2007]). In reviewing Defendant’s excuse, this Court is afforded judicial discretion to determine if Mussabekova’s excuse for failing to appear at trial on two separate occasions is reasonable (Santiago v. New York City Health & Hosps. Corp., 10 AD3d 393, 394, 780 NYS2d 764 [2d Dept 2004]; Roussodimou v. Zafiriadis, 238 AD2d 568, 569, 657 NYS2d 66 [2d Dept1997]). Mussabekova has alleged she was not aware of the trial dates but she did not provide any evidence to support her contention. She has also stated that she gave birth in October 2019, after the scheduled trials and a month prior to the inquest, but has not provided any reasons why the birth of her child in October prevented her from appearing at trial on April 9 and July 10, 2019. Furthermore, Mussabekova’s failure to submit any documentation to support that she was medically incapacitated during her pregnancy prevents this court from finding that her pregnancy during the pendency of the trials is a reasonable excuse for not appearing (Capital One Bank (USA), N.A. v. Glauber, 39 Misc3d 142 [A], 971 NYS2d 70 [App Term 2d, 11th, & 13th Jud Dists 2013]). Additionally, Mussabekova has not proffered any defense to Plaintiff’s claims in her moving papers. Thus, Defendant’s sworn statement that she was at least unaware of a pending trial without more, specifically, a meritorious defense to Siegel’s claim, which was not provided in strict compliance with CPLR 317 or 5015 is not sufficient for this Court to grant vacatur of the default judgment under CPLR 317 or 5015 (a) (1). The Court notes that while CPLR 317 does not require Defendant to explain her failure to appear, it does require her to provide a meritorious defense and Mussabekova has failed to do so. Nevertheless, the germane issue before this Court, not presented by either party, is whether Mussabekova is entitled to relief from this default judgment where she has not offered a reasonable excuse and meritorious defense to Siegel’s claim as required under CPLR 317 and 5015 (a) (1) and the Clerk of the Court would not have served the notices for trial to Mussabekova because the Court’s records indicate both parties are represented by counsel although it is clear from both the Court records and the parties’ submissions that Mussabekova represented herself pro se in all stages of the litigation relevant to this Order to Show Cause. New York City Civil Court Act §1301 mandates the Clerk of the Court to calendar all matters for trial and to mail trial notices to all parties in the action where any party appears pro se (Dirkes v. Peterson, 273 AD 41, 75 NYS2d 380 [1st Dep't 1947]; see also Panicker v. Northfield Sav. Bank, 12 Misc 3d 1153(A) [Richmond Civ Ct 2006]). Thus, the Court’s trial cards and Civil Judgment card warrants further examination given Mussabekova’s assertion that she was not served with notice of trial and this Court notes its own trial cards contain discrepancies regarding whether Defendants were represented by counsel. Both the Court’s Trial card, dated January 7, 2019 for an inquest held on November 19, 2019, and the Court’s Case summary card state that Mussabekova is represented by attorney Yorham Nachimovsky, PLLC located at 299 Broadway Ste 605, New York New York 10007, in contrast to the Court’s Civil Judgment file card, dated January 8, 2020, which has Mussabekova’s address listed at 2147 60th Street Apt 2F, Brooklyn New York 11204. It is undisputed that Mussabekova appeared pro se at trial on November 20, 2014 and before the Appellate Term as noted in its reversal of this Court’s decision on January 6, 2017. Thereafter for the new trial, the Clerk of Court was required to notify Mussabekova to appear at trial on April 9 and July 10, 2019 and not the attorney recorded for Mussabekova in the trial cards (New York City Civil Court Act §1301). The conflicting records leads this Court to conclude the Clerk of the Court did not notify Mussabekova because the Clerk believed Mussabekova was represented by counsel, shifting the responsibility to notify from the Clerk to the parties’ attorneys. Given the volume of cases filed in this Court, it is within the realm of possibility that the clerk who initially entered this case mistakenly entered attorney information for Defendant, Mussabekova. Plaintiff’s attorney provided affidavits of service indicating Plaintiff served Mussabekova the applicable notices at the relevant stages of the proceedings, except Plaintiff’s attorney did not provide any proof that Mussabekova was served specific notices to appear at trial on the scheduled dates. Although not the responsibility of Plaintiff to notify Mussabekova of the trial dates, this Court notes that neither the Clerk of the Court nor the Plaintiff’s attorney notified Mussabekova of the trial dates. Thus, the inquest was improperly held and the default was incorrectly granted. Mussabekova’s failure to appear at trial is of no fault of her own, depriving her of her day in court (see Dirkes v. Peterson, 273 AD 41 at 44 ["The judgment [awarded against Defendant-Appellant without notice] should not be permitted to stand”). Therefore, the Court of the Clerk did not have jurisdiction to enter the default judgment (Genet v. Johnson, 6 NYS2d 965, 967 [Queens Mun Ct 1938] affd. App Term 2d Dep’t [1938] ["Failure to give notice, whether upon a motion or notice of trial, renders all subsequent proceedings, based thereon, void."]). This Court also notes the absence of a meritorious defense is irrelevant since there was no default. Lordi Const. Co. v. Priore, 191 NYS 721 [App Term 1st Dep't 1922]). Based upon the foregoing reasons, the default judgment is vacated and the movant’s Order to Show Cause is granted. Accordingly, IT IS ORDERED, the default judgement is vacated. IT IS FURTHER ORDERED, that this matter is restored to the trial calendar. IT IS FURTHER ORDERED, that this matter shall proceed to virtual settlement conference forthwith before the Honorable Cenceria P. Edwards on October 30, 2020 at 2:30pm. IT IS FURTHER ORDERED, that this matter shall proceed to trial forthwith in the event settlement attempts are futile. IT IS FURTHER ORDERED, that the Clerk of the Court shall correct the records to reflect Defendant Mussabekova is a pro se litigant and change the addresses forthwith to the last address presented in her Order to Show Cause, dated September 24, 2020. IT IS FURTHER ORDERED, that the Clerk of the Court shall mail all parties a copy of this Decision and Order, forthwith. IT IS FURTHER ORDERED that Plaintiff’s attorney shall serve this Decision and Order with notice of entry upon all parties within 5 days of receipt. This Constitutes the Decision and Order of this Court. Dated: October 16, 2020
