The following papers numbered 1 to 3 read on this motion to vacate dismissal NoOn Calendar of January 29, 2021 PAPERS NUMBER Notice of Motion-Order to Show Cause — Exhibits and Affidavits Annexed 1 Answering Affidavit and Exhibits 2 Replying Affidavit and Exhibits 3 Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows: Plaintiff moves to vacate a dismissal of this action by order of Justice Doris Gonzalez dated December 10, 2019, pursuant to 22 NYCRR 202.27, for failure to appear at a status conference. A court should vacate a default upon the showing of a meritorious claim and a reasonable excuse for failure to appear (Jones v. New York City Hous. Auth., 13 AD3d 489, 787 N.Y.S.2d 94 [2004] ). The showing of merit necessary to vacate a 22 NYCRR 202.27 default is less than what is necessary for opposing a motion for summary judgment (see Caso v. Manmall, Inc., 68 AD3d 470, 472, 894 N.Y.S.2d 374 [2009], citing Levy v. New York City Hous. Auth., 287 AD2d 281, 731 N.Y.S.2d 20 [2001] ). (Goodwin v. New York City Hous. Auth., 78 AD3d 550 [1st Dept 2010). Plaintiff met his burden of showing a reasonable excuse of law office failure for the December 10, 2019 failure to appear for status conference. While defendant argues that there has been delays and neglect of this action, it is noted that this is the only failure of plaintiff to appear in the course of litigation. In his affidavit of merit, plaintiff addresses that he was verbally and in writing harassed, humiliated, was treated inequitably, with denied promotions, reduction in work hours and his appointment was terminated all based upon on his race, color or national origin. Plaintiff averred to four dates in which such discriminatory conduct took place. Defendant’s attorney argues that a final order, (Order), and the Debtors Amended Modified Second Amended Plan of Reorganization, (Plan) in defendant, Hans Futterman’s chapter 11 bankruptcy proceedings, bars plaintiff from seeking any relief against Hans Futterman. However, the order and plan does not refer to this action. Moreover, discrimination action such as the action at bar, are not dischargeable in bankruptcy. Pursuant to section 523(a)(6), an individual debtor may not receive a discharge from any debt “for willful and malicious injury by the debtor to another entity.” Willful means a “deliberate or intentional injury,” and malicious means “wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill-will.” Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006) (citation omitted). “Malice may be implied by the acts and conduct of the debtor in the context of the surrounding circumstances.” Id. (internal quotation omitted). In order to find the Debtor liable, the jury was required to find that he “intentionally, as opposed to recklessly or negligently, created a hostile work environment on the basis of her gender. An action is intentional if it is done knowingly, that is, if it is done voluntarily and deliberately and not because of mistake, accident, negligence, or other innocent reason.” Pl.’s Mot. Summ. J. Ex. C, at 501. In re Spagnola, 473 B.R. 518, 522-24 (Bankr. S.D.NY 2012) Accordingly, plaintiff’s motion to vacate the December 10, 2019 order dismissing this action is granted. The Clerk of the Court is directed to place this action on the appropriate calendar. The foregoing constitutes the decision and order of the Court. Dated: March 15, 2021
