COUTELLER v. MAMAKOS (2025)

Order and judgment (one paper), Supreme Court, New York County (Judy H. Kim, J.), entered December 6, 2024, after an inquest, awarding plaintiff $230,000 plus statutory interest and $6,080 in attorneys’ fees, and bringing up for review orders, same court (Frank P. Nervo, J.), entered on or about December 7, 2021 and March 25, 2022, which, respectively, struck defendant's answer and entered a default judgment on liability against her and denied defendant's CPLR 5015(a)(1) motion, unanimously affirmed, with costs.

As an initial matter, we decline to dismiss the appeal based on defendant's apparent inadvertent failure to include in the record several exhibits entered into evidence at the inquest.  The exhibits were described and discussed in other parts of the record, and thus their omission has not substantially prejudiced plaintiff (see CPLR 5526;  Bullaro v. Ledo, Inc., 219 A.D.3d 1243, 1243, 196 N.Y.S.3d 440 [1st Dept. 2023];  Cangro v. Park S. Towers Assoc., 154 A.D.3d 489, 490, 61 N.Y.S.3d 484 [1st Dept. 2017], appeal dismissed 30 N.Y.3d 1051, 69 N.Y.S.3d 580, 92 N.E.3d 803 [2018]).

The court providently exercised its discretion by striking defendant's answer based on her “failure to comply with court orders, in the absence of adequate excuses,” which permits an inference of willful and contumacious behavior (Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept. 2011];  see also CPLR 3126).  The record reflects that defendant failed to attend a status conference, did not meet discovery deadlines, and neglected to communicate with counsel, culminating in counsel's application to be relieved.  Defendant failed to take any action in this case for over a year, despite the court's instruction to either retain new counsel or notify the court of her intention to proceed pro se.  Defendant failed to appear at a scheduled conference notwithstanding the court's warning that a failure to appear would result in sanctions.  Thus, the court properly struck defendant's answer and entered the default judgment (see Lynx Capital Partners of NJ, LLC v. Bayes Capital LLC, 217 A.D.3d 571, 572, 192 N.Y.S.3d 75 [1st Dept. 2023]).  Defendant's willingness to permit this case to “linger for years without resolution,” caused prejudice to plaintiff and impaired “the efficient functioning of the courts” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010]).

The court also providently exercised its discretion in denying defendant's motion to vacate the default order because she failed to demonstrate excusable default (see CPLR 5015[a][1];  SOS Capital v. Recycling Paper Partners of PA, LLC, 220 A.D.3d 25, 38, 196 N.Y.S.3d 382 [1st Dept. 2023]).  The sole excuse defendant offered was that she did not timely receive the order which directed her to appear because it was sent to the wrong address.  However, the record reflects that, about a month before the conference, defendant's former attorney sent the order via certified mail to the same address defendant provided on her motion to vacate.  “A demonstrably false excuse will not justify the vacatur of a default” (Fergus v. Brooklyn Law School, 245 A.D.2d 62, 63, 665 N.Y.S.2d 81 [1st Dept. 1997]).

The court properly concluded that plaintiff established a prima facie case of defamation per se at the inquest (see Taylor v. Brooke Towers LLC, 73 A.D.3d 535, 535, 901 N.Y.S.2d 224 [1st Dept. 2010];  see also Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999]).  Defendant's statements fell within two of the categories of defamation per se, thus plaintiff was not required to prove special damages (see Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992]).  Defendant's accusations that plaintiff sexually assaulted her charged him with a serious crime (see Thomas H. v. Paul B., 18 N.Y.3d 580, 584–585, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012]), and her statements that plaintiff sexually harassed her and attempted to coerce sexual favors from her in exchange for his assistance with construction work tend to injure him in his trade, business, or profession (see Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 261, 633 N.Y.S.2d 106 [1st Dept. 1995]).  Plaintiff, as the resident manager and live-in superintendent of the building where defendant owned a condominium unit, explained that accusations of sexual assault and sexual harassment could “destroy” his reputation, and he would “never be able to get another job in the field.”

Although qualified privilege attaches to defendant's statements to the police reporting a crime (see Sagaille v. Carrega, 194 A.D.3d 92, 96, 143 N.Y.S.3d 36 [1st Dept. 2021], lv denied 37 N.Y.3d 909, 2021 WL 4164671 [2021]), and to her comments at a meeting of the board of managers of her building (see Harpaz v. Dunn, 203 A.D.3d 601, 602, 162 N.Y.S.3d 732 [1st Dept. 2022]), plaintiff sufficiently demonstrated that defendant published the statements accusing him of sexual assault and sexual harassment with common-law malice.  Plaintiff established defendant's “one and only cause for the publication” of the defamatory statements was “spite or ill will” (Liberman, 80 N.Y.2d at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344 [internal quotation marks omitted];  see Pezhman v. City of New York, 29 A.D.3d 164, 168–169, 812 N.Y.S.2d 14 [1st Dept. 2006]).  Plaintiff's credible testimony established that defendant's statements were part of a pattern of retaliation intended to harm his reputation and cause his termination.  Plaintiff also proved defendant widely disseminated the defamatory statements to the police, plaintiff's employers, professional colleagues, and every resident of the building, after he called the police to enforce the court order barring her from altering her apartment without permission.

The court's award of $200,000 in compensatory damages does not deviate materially from what would be reasonable compensation under the circumstances (CPLR 5501[c];  Donlon v. City of New York, 284 A.D.2d 13, 15, 727 N.Y.S.2d 94 [1st Dept. 2001]).  Defamation plaintiffs have received similar awards based on reputational harm and emotional distress (see e.g. Morsette v. “The Final Call”, 309 A.D.2d 249, 764 N.Y.S.2d 416 [1st Dept. 2003], lv dismissed 5 N.Y.3d 756, 801 N.Y.S.2d 248, 834 N.E.2d 1258 [2005];  Chiavarelli v. Williams, 281 A.D.2d 255, 255–256, 721 N.Y.S.2d 537 [1st Dept. 2001];  Partridge v. State of New York, 173 A.D.3d 86, 98, 100 N.Y.S.3d 730 [3d Dept. 2019]).  The court properly determined that $30,000 in punitive damages were warranted, as the record shows that defendant published the defamatory statements with common-law malice, “out of hatred, ill will, [or] spite” toward plaintiff (Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466, 479–480, 605 N.Y.S.2d 218, 626 N.E.2d 34 [1993];  see Morsette, 309 A.D.2d at 255, 764 N.Y.S.2d 416).

The court properly awarded plaintiff the attorneys’ fees and costs specifically incurred while opposing defendant's frivolous motion to vacate, which asserted “material factual statements that are false” (22 NYCRR 130–1.1[c][3];  Pickens v. Castro, 55 A.D.3d 443, 444, 867 N.Y.S.2d 47 [1st Dept. 2008]).