The following numbered papers were read on this motion: Submitted by Defendant in Support of Motion: NYSCEF Doc No. 75: Notice of Motion NYSCEF Doc No. 76: Affidavit of Seddrick Williams NYSCEF Doc No. 77: Affirmation of Michael Hatchett, Esq. NYSCEF Doc No. 78: Exhibit A — Decision & Order Vacating Default Judgment Submitted by Plaintiff in Opposition to Motion: NYSCEF Doc No. 81: Affirmation of David A. Zelman, Esq. Submitted by Defendant in Support of Motion: NYSCEF Doc No. 82: Reply Affirmation of Michael Hatchett, Esq. Judicial Notice by Court NYSCEF Doc No. 24: Judgment with Attachments NYSCEF Doc No. 90: Decision & Order of Appellate Division Affirming Vacatur of Default Judgment DECISION AND ORDER I. Background Defendant Seddrick Williams (“Defendant”) is an MTA employee who, on or about November 15, 2015, was operating a train on the R line. Williams was finishing up his shift and informed passengers that the train was at its final stop, telling all passengers to exit. As Defendant was walking through the cars to turn the train around, he had a verbal and physical altercation with Plaintiff Allan Damsky (“Plaintiff” hereinafter), who alleged that he was left stranded on the train as a passenger. A verbal dispute ensued; Defendant alleges Plaintiff used racial slurs toward Defendant, which Plaintiff denies. Defendant also alleges that Plaintiff was the initial aggressor, as Plaintiff grabbed and struck Defendant first; however, Defendant did strike Plaintiff, leading to Defendant’s arrest by NYPD. (See generally NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment at 1-2; NYSCEF Doc No. 76, Seddrick Williams Affidavit; NYSCEF Doc No. 77, Michael Hatchett Affirmation; NYSCEF Doc No. 81, David A. Zelman Affirmation.) II. Defendant Williams’ Arguments Defendant seeks an order by this Court directing Plaintiff to return to Defendant garnished wages in the amount of $13,820.37. A default judgment was rendered in Plaintiff’s favor as Defendant failed to appear at several pre-trial conferences. On February 11, 2019, Hon. Lawrence Knipel, J.S.C., ordered an inquest before a special referee with respect to damages: “Defendant Seddrick Williams having failed to appear a default is entered against [D]efendant Seddrick Williams” (NYSCEF Doc No. 24, Judgment with Attachments at 10). This order was entered March 11, 2019 (see id.). At inquest $15,000 was awarded to Plaintiff. (See id. at 6-9; NYSCEF Doc No. 76, Seddrick Williams Affidavit 13; NYSCEF Doc No. 81, David A. Zelman Affirmation 4.) A judgment on the inquest of June 7, 2019 was entered June 11, 2019 (see NYSCEF Doc No. 24, Judgment with Attachments at 1-2). Defendant discovered the existence of the default judgment via the Court’s efiling system (see NYSCEF Doc No. 77, Michael Hatchett Affirmation 16). Defendant’s counsel asserts that he did not receive notices via mailing as he left his firm and began practicing in a different office. These mailed notices were sent to his old office, and Defendant claims that Plaintiff was given notice of this change. Additionally, Plaintiff failed to upload notices to the Court’s e-filing system, so Defendant could not receive notices virtually, either. A failure to upload documents to the e-filing system is a failure of court regulations, maintained counsel. For the above reasons, Defendant asserts law office failure as an excuse for non-appearance. (See NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment at 2-3; NYSCEF Doc No. 77, Michael Hatchett Affirmation 16.) On September 11, 2019, Defendant moved to vacate the judgment under CPLR 5015 (a) (1), claiming excusable default and a meritorious defense; the motion was made within one year after the default judgment was entered. The motion was granted by Hon. Kathy King, J.S.C., in a decision an order dated January 27, 2021. Justice King granted Defendant’s motion to vacate the judgment, finding that the motion to vacate was timely, there was excusable default, and there was a meritorious excuse under §5015(a)(1) as “[D]efendant has demonstrated a meritorious excuse” through self-defense as Defendant claimed he was defending himself after Plaintiff used racist language against him and attacked defendant first. (See NYSCEF Doc No. 69, Supreme Court Order Vacating Judgment.) Meanwhile, funds had been garnished from Defendant’s salary paychecks for three years (2019, 2020, and 2021) due to the default judgment entered in Plaintiff’s favor (see NYSCEF Doc No. 76, Seddrick Williams Affidavit 15; NYSCEF Doc No. 77, Michael Hatchett Affirmation 19). Plaintiff collected $13,820.37 from Defendant, according to Defendant (see NYSCEF Doc No. 76, Seddrick Williams Affidavit 15; NYSCEF Doc No. 77, Michael Hatchett Affirmation 19); the exact amount is disputed by Plaintiff (see NYSCEF Doc No. 81, David A. Zelman Affirmation 5 ["Plaintiff received a total of $12,698.50."]).1 On September 28, 2022, the Appellate Division, Second Department, affirmed Justice King’s order vacating the default judgment (see Damsky v. Williams, 208 AD3d 1304 [2d Dept 2022]; NYSCEF Doc No. 90, Decision & Order of Appellate Division Affirming Vacatur of Default Judgment). In the matter before this Court, Defendant now seeks repayment of the garnished wages. Defendant argues that the judgment has been vacated and seeks enforcement of it, i.e., that the money paid to Plaintiff be returned to Defendant. Defendant claims that it is established precedent that garnished funds must be returned after a vacated judgment, citing to CCU LLC v. Steier (38 Misc 3d 1209[A], 2012 NY Slip Op 52425[U] [Civ Ct, Kings County 2012] [requiring repayment of garnished funds within ten days]) (see NYSCEF Doc No. 77, Michael Hatchett Affirmation 23). Additionally, 24. In the case at bar, there is no dispute that the Court has vacated the default judgment rendered on or about March 11, 2019. And, as noted above the Court noted it did not need to stay execution of the judgment since it had been vacated. 25. However, the Court may not have been aware that the Plaintiff, prior to Defendant’s Motion to Vacate had already begun to garnish Defendant’s wages. The intervening pandemic exacerbated the enforcement in that it delayed the Court’s ability to determine the Motion to Vacate for more than a year; allowing a substantial amount of Defendant’s wages to be garnished. 26. Nevertheless, this Court having vacated the default judgment, there can be little question but that the Plaintiff and his counsel must reimburse all monies garnished. 27. Plaintiff and his counsel’s refusal to remit the garnished wages is contrary to law of the state of New York, and a direct violation of the Vacated Judgment Order. (NYSCEF Doc No. 77, Michael Hatchett Affirmation
24-27.) III. Plaintiff Damsky’s Arguments Plaintiff opposes the motion in its entirety and believes the genuine issue is whether Defendant acted dilatorily in seeking the requested relief. Moreover, Plaintiff asks this Court to find the outcome of this motion moot if Defendant is found liable for his assault on Plaintiff. Should the outcome of this trial find Defendant liable, the previously garnished amount could offset the amount awarded to Plaintiff. (See NYSCEF Doc No. 81, David A. Zelman Affirmation
