The following e-filed papers read herein: NYSCEF No.: Order to Show Cause/Notice of Motion, Affirmations (Affidavits), Memoranda of Law, and Exhibits Annexed 43, 5-23; 60, 42-51 Affirmations (Affidavits) in Opposition and Exhibits Annexed 24-35; 53-57 Reply Affirmations 36-40; 62-63 Post-Submission Letters to the Court 64-71 DECISION AND ORDER In this action to recover damages for medical malpractice and wrongful death, defendant Barry Goldberg (formerly known as Barry Goldberg, M.D.1) (“defendant”) moved, by order to show cause, dated May 9, 2016 (Walker, J.), for (among other relief) an order: (1) pursuant to CPLR §5015 (a) (3), vacating and setting aside the judgment, dated January 5, 1998, in favor of plaintiff Paul Herszdorfer, individually and as executor of his late mother’s estate (collectively, “plaintiff”), and against defendant (the “default judgment”) (NYSCEF Doc. No. 7), “based on [the alleged] misrepresentation and misconduct of [plaintiff] in obtaining such default judgment”; (2) pursuant to CPLR 317 and 5015 (a) (1), vacating and setting aside the default judgment on the grounds of a reasonable excuse and a potentially meritorious defense; and (3) pursuant to the court’s inherent discretionary powers, vacating and setting aside the default judgment in the interests of substantial justice (motion sequence [mot. seq.] four) (NYSCEF Doc. No. 43) (“Justice Walker’s OSC”). In addition, defendant moved, by notice of motion, dated November 17, 2022, for an order, pursuant to CPLR §§5240 and 5018, limiting and precluding plaintiff from enforcing the default judgment against certain real property owned by defendant in Suffolk County (mot. seq. six) (NYSCEF Doc. No. 60) (the “CPLR 5240/5018 motion”). Plaintiff opposed both motions. The remaining defendant, Maimonides Medical Center, was dismissed from this action by stipulation, dated February 6, 1995 (NYSCEF Doc. No. 13). Chronology of Events From November 1987 to November 1990 (months and years being approximate), plaintiff’s decedent, Lillian Herszdorfer, was an alleged patient of defendant who was then practicing as an internist at his solo medical practice at 5618 8th Avenue in Brooklyn, New York (the “8th Avenue address”).2 During her weekly visits to defendant, plaintiff’s decedent allegedly complained to defendant of persistent pain in her chest and right shoulder (as well as to her back and one of her arms).3 Defendant allegedly disregarded plaintiff’s decedent’s complaints, attributing them instead to arthritis4 which he treated with (among other medications) controlled opioids, such as Percocet.5 In November 1990, plaintiff’s decedent presented to the since-dismissed defendant Maimonides Medical Center where a metastatic carcinoma with the primary tumor in her left lung was diagnosed.6 Despite the utilization of various treatment modalities, plaintiff’s decedent succumbed to cancer in September 1991 at the age of 51.7 In August 1992, plaintiff commenced this action against defendant (among others) for medical malpractice and wrongful death.8 The accompanying certificate of merit indicated that plaintiff’s counsel had been unable to obtain the requisite medical consultation before the filing but would file it within ninety days after service of the underlying complaint.9 No certificate of merit was filed to date. In September 1992, defendant was served with process, pursuant to CPLR 308 (2), by delivery of the summons and complaint to an individual of suitable age and discretion at the 8th Avenue address, coupled with the additional mailing to that address, as reflected by the affidavit of service, dated September 2, 1992 (NYSCEF Doc. No. 10). A copy of defendant’s lease for the 8th Avenue address is not in the record. By notice of motion, dated January 4, 1993, plaintiff moved for leave to enter a default judgment against defendant (NYSCEF Doc. No. 21, at pages 37-38 of 99). On January 5, 1993, defendant was served with a copy of the notice of motion (together with the affirmation of support and attachments thereto) at the 8th Avenue address by first-class mail, as reflected by the affidavit of service of that date (NYSCEF Doc. No. 21 at page 58 of 99). On May 14, 1993, defendant was served with a copy of the proposed order granting the aforementioned motion, with notice of settlement, at the 8th Avenue address by first-class mail, as reflected by the affidavit of service of that date (NYSCEF Doc. No. 12). By order, dated June 10, 1993, the Court (Clemente, J.) granted the aforementioned motion for a default judgment and directed that “this matter be set down for an inquest upon the filing of a Note of Issue” (NYSCEF Doc. No. 11) (the “order on default”). On October 12, 1993, defendant was served with a copy of the order on default, with notice of entry, at the 8th Avenue address by first-class mail, as reflected by the affidavit of service of that date (NYSCEF Doc. No. 21 at page 85 of 99). Approximately eleven months later in September 1994, defendant relocated his medical office from 8th Avenue to 4818 Fort Hamilton Parkway in Brooklyn, New York (the “Ft. Hamilton Parkway address”).10 A copy of defendant’s lease for the Ft. Hamilton Parkway address is not in the record. According to defendant, when he relocated his medical office from 8th Avenue to Ft. Hamilton Parkway, he notified the USPS of his forwarding address.11 On January 10, 1996, plaintiff presented a note of issue to the Kings County Clerk for approval and filing (NYSCEF Doc. No. 21 at pages 78-79 of 99). On January 11, 1996, defendant was served with a copy of the note of issue at the 8th Avenue address by first-class mail, as reflected by the affidavit of service of that date (NYSCEF Doc. No. 21 at page 5 of 99). On January 23, 1996, the note of issue was approved for filing, and on the following day, January 24, 1996, the note of issue was stamped with the date/time filing stamp (NYSCEF Doc. No. 21 at pages 78-79 of 99). The note of issue demanded a trial by jury of all issues (id.). On September 2, 1997, an inquest on damages was held before Justice Joseph S. Levine of this Court.12 Justice Levine awarded plaintiff a total of $509,320.00, consisting of $250,000.00 on the medical malpractice cause of action, $250,000.00 on the wrongful death cause of action, and $9,320.00 in funeral expenses/special damages.13 In advance of the inquest, defendant had not been served with a five-day notice, despite the mandate of CPLR §3215 (g) (1). According to defendant, he practiced at the Ft. Hamilton Parkway address from September 1994 until November 1997 when he consolidated his medical practice at a house in Long Island, New York (the “Suffolk County property”).14 According to defendant, when he consolidated his medical practice at the Suffolk County property, he did not notify the USPS of his forwarding address.15 On December 30, 1997, defendant was served with a copy of the proposed default judgment with notice of settlement at the Ft. Hamilton Parkway address by first-class mail, as reflected by the affidavit of service of that date (NYSCEF Doc. No. 21 at page 70 of 99). On January 5, 1998, the default judgment in the principal sum of $528,497.85 in favor of plaintiff and against defendant was entered and filed by the Kings County Clerk (NYSCEF Doc. No. 7). Defendant was not served with the default judgment with notice of entry. Also on January 5, 1998, the default judgment was docketed against defendant as “Barry Goldman, M.D.,” with the Kings County Clerk (NYSCEF Doc. No. 54). Approximately 15 years later in 2013, plaintiff sought to collect on the default judgment. On September 23, 2013, plaintiff filed and docketed the default judgment with the Suffolk County Clerk (NYSCEF Doc. No. 55). On May 29, 2014, the Suffolk County Sheriff issued a Notice of Levy Upon Real Property as against the Suffolk County property (NYSCEF Doc. No. 20). At the time, plaintiff’s collection efforts on the default judgment were unsuccessful. Approximately two years later in 2016, plaintiff (by new counsel) resumed his efforts to collect on the default judgment by way of a superseding execution. On April 6, 2016, the Suffolk County Sheriff notified defendant, by letter mailed to him at the Suffolk County property, that he had fourteen days in which to satisfy the default judgment (NYSCEF Doc. Nos. 18-19). By that time, the principal sum of the default judgment had increased to $1,447,550.81 (id.). On May 9, 2016, defendant obtained the aforementioned OSC from Justice Walker of this Court seeking to set aside and vacate the default judgment. Four days later on May 13, 2016, defendant commenced a special proceeding against plaintiff (among others) in Suffolk County to stop the Suffolk County Sheriff from executing on the Suffolk County property. See Goldberg v. Herszdorfer, index No. 4849/16 (Sup Ct, Suffolk County) (available at e-courts) (the “Suffolk County proceeding”). By decision/order, dated October 3, 2016, the Court presiding over the Suffolk County proceeding: (1) directed that plaintiff shall refrain (and, by way of notification, shall cause the Suffolk County Sheriff to refrain) from undertaking any/all action to sell the Suffolk County property in (full or partial) satisfaction of the default judgment; and (2) further held that in the event the default judgment was not vacated by the Court presiding over this action, a hearing would be scheduled in the Suffolk County proceeding, pursuant to CPLR §5206, to determine whether the Suffolk County property was (or was not) subject to defendant’s homestead exemption. See Goldberg v. Herszdorfer, Decision/Order, dated October 3, 2016 (Sup Ct, Suffolk County) (available at e-courts). Subsequent to the October 3, 2016 ruling in the Suffolk County proceeding, the focus of defendant’s claims shifted to the vacatur of the default judgment under the alternate theories of relief he was seeking by way of Justice Walker’s OSC. By decision/order, dated March 20, 2017, Justice Gloria M. Dabiri of this Court directed (over defendant’s objection) that a traverse hearing be held to resolve his threshold contention (advanced in the initial branch of Justice Walker’s OSC) that he was not properly served with process at the 8th Avenue address (NYSCEF Doc. No. 40). On June 15, 2018, defendant’s appeal from Justice Dabiri’s decision/order was dismissed, sua sponte, by the Second Department as nonappealable. Herszdorfer v. Maimonides Med. Ctr., 2018 N.Y. Slip Op 75240(U) (2d Dept., 2018). On April 16, 2019, a traverse hearing was commenced before Justice Graham of this Court. The traverse hearing, on account of the intervening pandemic, was concluded on November 22, 2022. The day before the traverse hearing was to be concluded, defendant served the aforementioned CPLR §§5240/5018 motion (in mot. seq. six) to preclude enforcement of the default judgment. By post-hearing decision/order, dated December 21, 2022, Justice Graham held that defendant was properly served with process at the 8th Avenue address (NYSCEF Doc. No. 3).16 Justice Graham’s decision/order determined the initial branch of Justice Walker’s OSC which was pursuant to CPLR §5015 (a) (4) to dismiss this action for lack of personal jurisdiction over him (and thereby vacate the order on default, the note of issue, the inquest on damages, and the default judgment). On April 14, 2023, this Court heard oral argument, and reserved decision, on the remaining branches of Justice Walker’s OSC, as well as on defendant’s CPLR §§5240/5018 motion. At oral argument, the Court directed plaintiff’s counsel to submit proof of service of notice of inquest, which, according to plaintiff’s counsel, was allegedly served on defendant on October 12, 1993 (NYSCEF Doc. No. 65). By letter, dated April 17, 2023, plaintiff’s counsel advised the Court of her error at oral argument; namely, that she had confused the date of service of the order on default (with notice of entry) for the date of the alleged (but never effectuated) service of notice of inquest (NYSCEF Doc. No. 65). In so advising the Court, plaintiff’s counsel conceded that notice of inquest had never been served on defendant (id.). In their additional post-submission letters to the Court, the parties disputed the legal significance of the absence of service of notice of inquest on defendant, with each side citing seemingly conflicting decisions on this issue in the Second Department (NYSCEF Doc. Nos. 64-65, 67, and 69). Determination of Justice Walker’s OSC (Mot. Seq. Four) Defendant’s Request to Vacate Default Judgment Under CPLR §5015 (a) (3) As noted, a portion of Justice Walker’s OSC sought an order, pursuant to CPLR §5015 (a) (3), vacating the default judgment “based on [the alleged] misrepresentation and misconduct of [plaintiff] in obtaining such default judgment.” As grounds for plaintiff’s alleged “misrepresentation and misconduct,” defendant contended that: (1) plaintiff’s service of the note of issue on January 10, 1996 at the 8th Avenue address was improper because plaintiff knew (or should have known) that defendant had not conducted business at that address for more than a year; (2) plaintiff failed, “upon information and belief,” to serve the order on default with notice of entry on defendant; and (3) plaintiff further failed, likewise “upon information and belief,” to serve the default judgment with notice of entry on defendant (Justice Walker’s OSC, pages 3-4, Subsection b [i]-[iii]).17 CPLR §5015 (a) (3) permits a court to relieve a party from an order or judgment on the ground of “fraud, misrepresentation, or other misconduct of an adverse party.” Here, the circumstances cited by defendant did not establish that plaintiff procured the default judgment by fraud, misrepresentation, or other misconduct. Contrary to defendant’s first contention (in Subsection b [i] at pages 3-4 of Justice Walker’s OSC), plaintiff’s service of the note of issue on January 10, 1996 at his prior address on 8th Avenue did not amount to fraud, misrepresentation, or other misconduct, particularly in light of defendant’s admission that he had notified the USPS of the forwarding address to the Ft. Hamilton Parkway office. Defendant’s second contention (made upon “information and belief” in Subsection b [ii] at page 4 of Justice Walker’s OSC) that plaintiff failed to serve him with the order on default with notice of entry was refuted by plaintiff’s (former) counsel’s affidavit of service, dated October 12, 1993, averring that defendant was served with a copy of the order on default, with notice of entry, at the 8th Avenue address by first-class mail (NYSCEF Doc. No. 21 at page 85 of 99). Third and finally, plaintiff’s conceded failure to serve the default judgment with notice of entry on defendant did not amount to fraud, misrepresentation, or other misconduct. Thus, vacatur of the default judgment pursuant to CPLR §5015 (a) (3) is unwarranted. Compare Li Xian v. Tat Lee Supplies Co., Inc., 126 A.D.3d 424, 2 N.Y.S.3d 344 (1st Dept. 2015) (cited by defendant) (“[The] Defendant demonstrated that plaintiffs’ motion for a default judgment was granted, in part, based on plaintiffs’ counsel’s incorrect representation that [the] defendant’s old address was the ‘only known’ address for service of the additional summons…, when, in fact, plaintiffs’ sublease provided another address for service of legal notices on [the] defendant.”) (underlining added). Defendant’s Request to Vacate Default Judgment Under CPLR §§317 and 5015 (a) (1) Alternatively, defendant (via Justice Walker’s OSC) sought vacatur of the default judgment pursuant to CPLR §§317 and 5015 (a) (1), on the grounds of a reasonable excuse and a potentially meritorious defense. CPLR §317 states, in pertinent part, that “[a] person served with a summons other than by personal delivery…who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he [or she] did not personally receive notice of the summons in time to defend and has a meritorious defense” (underlining added). Defendant’s reliance on CPLR §317 as a predicate for vacatur of the default judgment is unavailing because he sought to vacate it by Justice Walker’s OSC, dated May 9, 2016, more than eighteen years after its entry on January 5, 1998. See Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 32 N.Y.S.3d 213 (2d Dept. 2016); Anderson v. GHI Auto Serv., Inc., 45 A.D.3d 512, 845 N.Y.S.2d 129 (2d Dept. 2007).18 Turning to CPLR §5015 (a) (1), the Court notes that a CPLR §5015 (a) (1) motion must be “made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party.” Inasmuch as the default judgment was never served with notice of entry on defendant, the one-year deadline for making a CPLR §5015 (a) (1) motion did not begin to run. Therefore, defendant’s explicit request for vacatur of the default judgment under CPLR §5015 (a) (1) was timely. To the extent defendant implicitly sought vacatur of the order on default, such request would be untimely because, as stated above, the order on default with notice of entry was served on defendant on October 12, 1993, or more than twenty years before Justice Walker’s OSC of May 9, 2016. The timeliness of defendant’s request for vacatur of the default judgment under CPLR §5015 (a) (1) does not end the inquiry, however. “A party seeking to vacate a default judgment pursuant to CPLR §5015 (a) (1) must demonstrate [1] a reasonable excuse for the default and [2] a potentially meritorious defense to the action.” Gleizer v. Gleizer, ___ A.D.3d ___, ___ N.Y.S.3d ___, 2023 N.Y. Slip Op. 02648 (2d Dept. 2023). “The determination of what constitutes a reasonable excuse is generally left to the sound discretion of the Supreme Court.” Blazo v. Wyckoff Hgts. Med. Ctr., 125 A.D.3d 705, 4 N.Y.S.3d 99 (2d Dept. 2015). Here, defendant met the “reasonable excuse” requirement because (as discussed below) he was not served with notice of inquest in accordance with CPLR §3215 (g) (1), nor was he served with the default judgment with notice of entry. Defendant, however, failed to meet the “potentially meritorious defense” requirement for three reasons. First, defendant failed to submit an expert affirmation.19 Second, he failed to submit any portion of his medical records for plaintiff’s decedent; particularly, the portion reflecting his contention (in 30 of his opening affidavit at NYSCEF Doc. No. 6) that “[w]hen appropriate, [he] referred [plaintiff's decedent] to a specialist.” Finally and crucially, not only were his own affidavits averring to the absence of medical malpractice self-serving and conclusory (as reproduced in the margin20), but they were also without probative value because his license as a physician was revoked in November 2000, or approximately fifteen years before he moved to vacate the default judgment in May 2016. Thus, vacatur of the default judgment pursuant to CPLR §317 and/or 5015 (a) (3) is also unwarranted. See generally Langona v. Village of Garden City, 203 A.D.3d 1038, 162 N.Y.S.3d 741 (2d Dept. 2022); Diaz v. Ralph, 66 A.D.3d 819, 886 N.Y.S.2d 617 (2d Dept. 2009). Defendant’s Request to Vacate Default Judgment in the Interests of Substantial Justice Lastly, defendant sought to invoke this Court’s inherent discretionary powers to vacate the default judgment in the interests of substantial justice. It is well established that “[i]n addition to the grounds set forth in section 5015 (a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice.” Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727 (2003). “A motion to vacate a default is addressed to the sound discretion of the motion court.” HSBC Bank USA, N.A. v. Alexis, 195 A.D.3d 600, 149 N.Y.S.3d 517 (2d Dept. 2021). Here, vacatur of the default judgment is appropriate, in the interests of substantial justice, for two reasons: (1) lack of service on defendant of the default judgment with notice of entry; and (2) lack of service on defendant of notice of inquest — both being the necessary predicates to the enforceability of the default judgment against defendant. “[I]t is axiomatic that before an order [or judgment] may be enforced, notice of such order [or judgment] must be given to the party against whom it is sought to be enforced.” Wells Fargo Bank, N.A. v. Frierson, 150 A.D.3d 1045, 55 N.Y.S.3d 332 (2d Dept. 2017); see also CPLR §2220 (b). “Where the rights of a party are or may be affected by an order [or judgment], the successful moving party, in order to give validity to the order [or judgment], is required to serve it on the adverse party.” McCormick v. Mars Assoc., Inc., 25 A.D.2d 433, 265 N.Y.S.2d 1004 (2d Dept. 1966). Inasmuch as the default judgment with notice of entry was never served on defendant, its vacatur is appropriate, as more fully set forth in the decretal paragraphs below. See Fried v. Carlucci & Legum, Cascione, Chechanover & Purcigliotti, P.C., 309 A.D.2d 829, 766 N.Y.S.2d 83 (2d Dept. 2003).21 The additional reason for vacatur of the default judgment in the interests of substantial justice is a lack of notice to defendant of the underlying notice of inquest. Where, as here, more than one year had elapsed since defendant’s default in appearing and answering, he was entitled to at least five days’ notice of the time and place of the inquest pursuant to CPLR §3215 (g) (1). See New York Tel. Co. v. Don Siegel Const. Co., Inc., 1 A.D.3d 329, 766 N.Y.S.2d 874 (2d Dept. 2003); Astron Steel Fabrications, Inc. v. Kent Restoration, Inc., 283 A.D.2d 381, 723 N.Y.S.2d 860 (2d Dept. 2001). Plaintiff’s reliance on 21st Mtge. Corp. v. Raghu, 197 A.D.3d 1212, 154 N.Y.S.3d 84 (2d Dept. 2021), in support of his contrary position, that notice of inquest was not required to be served on defendant, is misplaced. The Second Department’s holding in 21st Mtge. Corp. that “CPLR 3215 (g) (1) did not require the plaintiff to give [the defendant] notice of its motion to confirm the referee’s report and for a judgment of foreclosure and sale,” is limited to the mortgage-foreclosure context, as illustrated in the margin.22 All the foregoing said, there are two relevant caveats. First, vacatur of the default judgment requires that an inquest be held anew. Defendant will be “entitled at [such] inquest to cross-examine witnesses, give testimony, and offer proof in mitigation of damages.” Golden v. Romanowski, 128 A.D.3d 1009, 9 N.Y.S.3d 653 (2d Dept. 2015). Second, vacatur of the default judgment does not in any way affect the continued validity of the order on default. Defendant’s contentions that the complaint was insufficient and was unaccompanied by a certificate of merit are precluded by the order on default which remains in full force and effect. Determination of Defendant’s CPLR §§5240/5018 Motion (Mot. Seq. Six) In light of the Court’s vacatur of the default judgment as more fully set forth in the decretal paragraphs below, defendant’s CPLR §§5240/5018 motion to preclude its enforcement as against the Suffolk County property is moot. Conclusion Upon the foregoing and after oral argument, it is ORDERED that in mot. seq. four, Justice Walker’s Order to Show Cause, dated May 9, 2016 (to the extent not previously determined by Justice Graham’s decision/order, dated December 21, 2022), is granted solely to the extent that: (1) the Judgment, dated and entered January 5, 1998, is vacated; (2) an inquest solely on the issue of damages shall be scheduled after a settlement conference, which shall be held on June 30, 2023, at 11:00 a.m., in courtroom 775; and (3) plaintiff’s counsel is directed, within twenty days after electronic service of this Decision and Order by defendant’s counsel on plaintiff’s counsel, to notify, by certified mail, return receipt requested, both the Suffolk County Sheriff and the chambers of the Suffolk County Supreme Court Justice presiding over the Suffolk County proceeding of the vacatur of the aforementioned judgment, together with a copy of this Decision and Order (with an electronic copy of the foregoing notifications to defendant’s counsel); and the remainder of Justice Walker’s Order to Show Cause is denied; and it is further ORDERED that notwithstanding the vacatur of the aforementioned judgment, the order on default, dated June 10, 1993 (Clemente, J.), remains in full force and effect; and it is further ORDERED that in mot. seq. six, defendant’s motion for an order, pursuant to CPLR 5240 and 5018, limiting and precluding plaintiff from enforcing the default judgment against certain real property owned by defendant in Suffolk County is denied as moot; and it is further ORDERED that to reflect the prior stipulated dismissal of Maimonides Medical Center from this action as well as the forfeiture of defendant’s physician’s license, the caption is amended to read in its entirety as follows: PAUL HERSZDORFER, as Executor of the Estate of LILLIAN HERSZDORFER, Deceased, and PAUL HERSZDORFER, Individually, Plaintiffs v. BARRY GOLDBERG, Defendant; 26187/92 ; and it is further ORDERED that defendant’s counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on plaintiff’s counsel and to electronically file an affidavit of service thereof with the Kings County Clerk; and it is further ORDERED that any relief not expressly granted herein is denied. This constitutes the Decision and Order of the Court. Dated: June 25, 2023
