Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on April 11, 2024, under motion sequence number four1, by Yusuf Balta and Crystal Agro Inc. (f/k/a Crystal Bakery, Inc.) (hereinafter the plaintiffs) for an order pursuant to CPLR 3215, granting a default judgment as against Garran J. Graner (hereinafter the defendant) based on the defendant’s failure to answer the complaint. The motion is opposed. -Notice of motion -Affirmation in support Exhibits 1-8 -Affirmation in support, by plaintiff Yusuf Balta Exhibits YB1-YB4 -Affirmation in opposition Exhibits A-E -Affirmation in reply DECISION & ORDER BACKGROUND On May 11, 2023, plaintiffs commenced the instant action for legal malpractice by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk’s office (hereinafter KCCO). On June 2, 2023, plaintiffs filed an affidavit of service of the commencement papers on the defendant with the KCCO. On October 31, 2023, the defendant, proceeding pro se, filed a notice of appearance with the KCCO. The October 2023 notice of appearance directed that a copy of all papers in the proceeding, except for initial service of the summons and complaint, be served at the central mailing post office address designated therein. On November 1, 2023, the defendant filed another notice of appearance with the KCCO. The November 2023 notice of appearance directed that a copy of all papers in the proceeding be served at the office address designated therein. The November 2023 notice gave a different address than the October 2023 notice of appearance. The complaint has alleged the following salient facts in support of a single cause of action for legal malpractice. On August 11, 2017, there was a fire at plaintiffs’ Brooklyn bakery, Crystal Bakery (hereinafter the bakery), that caused serious damage resulting in a total loss of the business. On September 14, 2017, the defendant agreed to provide legal services to the plaintiffs in connection with the bakery fire. On August 12, 2019, the defendant commenced an action against Acme Contracting Corp. (hereinafter Acme), Big Knapp, LLC (hereinafter Big Knapp) and M&R Management Co., Inc. (hereinafter M&R) (together the underlying defendants), by filing a summons with notice in New York State Supreme Court, Kings County, under Index No. 517695/2019 (hereinafter the underlying action). On December 10, 2019, the defendant filed an amended summons with notice. The fire was allegedly caused by the negligence of the underlying defendants. On January 30, 2020, Big Knapp and M&R demanded a complaint pursuant to CPLR 3012 (b). On July 7, 2020, Big Knapp and M&R filed a motion to dismiss the complaint pursuant to CPLR 3012 (b) for plaintiff’s failure to serve a complaint (hereinafter the motion to dismiss). On October 9, 2020, the court granted Big Knapp and M&R’s motion to dismiss on default. The defendant did not file a response to the motion until October 9, 2020, when the defendant filed a letter to the court requesting an adjournment of the motion to dismiss. On June 8, 2021, the defendant filed a motion to vacate the October 9, 2020, decision and order granting the motion to dismiss (hereinafter the first motion to vacate). On October 6, 2021, the court denied the first motion to vacate. On January 31, 2022, the defendant motioned the Court for a second time (hereinafter the second motion to vacate). This motion was also denied. With respect to the defendant Acme, the defendant did not in any way advance the case, or properly serve them, and has now deprived plaintiffs of the opportunity to do so. The defendant deviated from good and accepted standards in the practice of law. Plaintiffs had a viable meritorious cause of action against the underlying defendants in the underlying action. Plaintiffs would have prevailed in the underlying action but for the defendant’s legal malpractice. Plaintiffs paid the defendant substantial amounts of money for the sole purpose of representing plaintiffs in said legal matter, including a $8,075.00 retainer fee. As a result of the defendant’s failure to exercise the degree of care, skill, and diligence commonly possessed by a member of the legal community, plaintiffs’ case has been dismissed and plaintiffs have been deprived of the opportunity to obtain recourse for their injuries. LAW APPLICATION In the instant motion, the plaintiffs seek leave to enter a default judgment against the defendant pursuant to CPLR 3215. CPLR 3215 (a) and (f) provide in pertinent part as follows: “(a) Default and entry. When a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him… (f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint and proof of the facts constituting the claim, the default, and the amount due by affidavit made by the party…Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney.” “On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649, 651 [2d Dept 2011], citing CPLR 3215 [f]). “CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit ‘made by the party’ (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [2d Dept 2009]). “Generally, ‘[t]he filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction’” (Ming Xue Xir v. 422 Sunshine Ct., LLC, 227 AD3d 980, 982 [2d Dept 2024], quoting U.S. Bank N.A. v. Pepe, 161 AD3d 811, 812 [2d Dept 2018]). Here, the defendant filed a notice of appearance on October 31, 2023 and on November 1, 2023. The defendant, however, neither interposed an answer to the complaint nor made a motion to dismiss the complaint. Consequently, the defendant waived any claim to lack of personal jurisdiction and the plaintiff is not required to prove service of the commencement papers upon the defendant. To obtain a default judgment under these circumstances, the plaintiff must still file proof of the facts constituting the claim, the default, and the amount due by an affidavit made by the plaintiff. To demonstrate facts constituting the claim, the movant need only proffer proof sufficient to enable a court to determine that a viable cause of action exists (see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served (see id. at 70; see CPLR 3215 [f]). Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due (see CPLR 105 [u]). The complaint in the instant action was not verified and therefore may not serve as an affidavit of the facts constituting the claim. On April 11, 2024, plaintiff Yusuf Balta filed an affirmation setting forth the merits of plaintiffs’ claim. The affirmation of merit set forth a viable claim against the defendant for legal malpractice. Moreover, “[a] defaulting defendant ‘admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages’” (Commonwealth Land Title Ins. Co. v. Islam, 220 AD3d 739, 741 [2d Dept 2023], quoting Castaldini v. Walsh, 186 AD3d 1193, 1194 [2d Dept 2020], quoting Rokina Opt. Co. v. Camera King, 63 NY2d 728, 730 [1984]). Plaintiffs’ motion papers established their entitlement to a default judgment against the defendant on the issue of liability on their claim for legal malpractice. “Once the plaintiff has made such a showing, the defendant, in order to avoid entry of a default judgment, must show either that there was no default, or that [the defendant] has a reasonable excuse for its delay and a potentially meritorious defense” (Hersko v. Hersko, 224 AD3d 810, 812 [2d Dept 2024], quoting Pemberton v. Montoya, 216 AD3d 988, 989 [2d Dept 2023]). “The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court” (Hersko, 224 AD3d at 812, quoting Deutsche Bank Natl. Trust Co. v. Allenstein, 201 AD3d 783, 786 [2d Dept 2022]. Defendant submitted an affirmation in opposition which essentially asserted the following four contentions. The first contention is the claim that the underlying action was dismissed due to the defendant’s legal malpractice is inaccurate. Second, the underlying action is still active. Third, the plaintiffs did not properly serve the commencement papers of the instant action upon the defendant. Fourth, there is no viable claim for legal malpractice against the defendant. The defendant annexed various documents in support of these contentions. In reply to defendant’s opposition papers plaintiff’s counsel asked the Court to disregard the defendant’s opposition papers as untimely. On June 20, 2024, the Court issued a short form order, directing that defendant would have until July 20, 2024, to submit opposition papers to the motion and that the plaintiff would have until July 27, 2024, to submit reply papers; thereafter, the motion would be deemed fully submitted. However, since July 20, 2024, was a Saturday, the defendant had until July 22, 2024, the following Monday, to file opposition (see General Construction Law §25-a) and since July 27, 2024, was a Saturday, plaintiffs had until July 29, 2024, the following Monday, to submit their reply (see General Construction Law §25-a). Defendant’s opposition to the motion was filed on July 27, 2024, five days after the due date of July 22, 2024, as extended by virtue of the provisions of General Construction Law §25-a. Plaintiffs’ reply was timely filed on July 28, 2024, one day after defendant’s filing, and before the due date of July 28, 2024, as extended by virtue of the provisions of General Construction Law §25-a. In accordance with CPLR 2001, the Court has disregarded the defendant’s de minimis lateness in submitting opposition papers because the delay caused no prejudice to the plaintiffs. The defendant’s opposition papers did not provide an excuse or an explanation for not interposing an answer to the complaint. Defendant has argued that plaintiffs improperly served the commencement papers and therefore defendant is not in default. That argument was rendered meritless by the defendant’s filing of a notice of appearance (Ming Xue Xir v. 422 Sunshine Ct., LLC, 227 AD3d 980, 982 [2d Dept 2024]). The defendant also made a vague and unsubstantiated claim of illness. However, the defendant’s claim of illness was not offered as an explanation for not answering the complaint. Thus, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense to the action (HSBC Bank USA, N.A. v. Daniels, 163 AD3d 639, 640-641 [2d Dept 2018]). The plaintiffs’ motion is granted, and the plaintiffs may continue to prosecute their claim on the issue of damages. The Court has taken note that the affirmation of plaintiff’s counsel in reply to defendant’s opposition papers contained ad hominem attacks against the defendant, which included calling the defendant a liar. The defendant is an attorney, and as such is an officer of the Court (Suzuki v. Greenberg, 220 AD3d 604, 605 [1st Dept 2023]). Ad hominem, vituperative, and derogatory attacks against an attorney in open court or in court filings is unprofessional, inappropriate, and may result in sanctions (see Matter of Levy, 215 NYS3d 333, 2024 NY Slip Op 03866, *2 [2024]; see Matter of Raskin, 217 AD2d 187, 189 [2d Dept 1995]). Plaintiff’s counsel is admonished that such conduct is highly disfavored and should not be repeated. CONCLUSION The motion by Yusuf Balta and Crystal Agro Inc. for an order pursuant to CPLR 3215, granting a default judgment as against Garran J. Graner based on the defendant’s failure to answer the complaint is granted. Plaintiffs’ counsel is directed to pay $100 cost to the defendant within thirty days of notice of entry of the instant decision and order. The foregoing constitutes the decision and order of this Court. Dated: August 28, 2024
