SCOTT PIATT PA INDIVIDUALLY AND SCOTT PIATT DOING BUSINESS AS AESTHETIC SOLUTIONS AND SUMMIT HEALTHCARE PLAINTIFF RESPONDENT v. ROSS HORSLEY DEFENDANT AND PAUL KIRSCH DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

SCOTT J. PIATT, PA, INDIVIDUALLY, AND SCOTT J. PIATT, DOING BUSINESS AS AESTHETIC SOLUTIONS AND SUMMIT HEALTHCARE, PLAINTIFF–RESPONDENT, v. ROSS A. HORSLEY, M.D., DEFENDANT, AND PAUL B. KIRSCH, M.D., DEFENDANT–APPELLANT.

CA 12–02244

Decided: July 19, 2013

PRESENT:  CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ. SHANE & REISNER, LLP, ALLEGANY (JEFFREY P. REISNER OF COUNSEL), FOR DEFENDANT–APPELLANT. AMIGONE SANCHEZ & MATTREY, LLP, BUFFALO (JACK M. SANCHEZ OF COUNSEL), AND JAMES F. ALLEN, FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed in the exercise of discretion without costs and that part of the motion seeking vacatur of the judgment entered August 6, 2010 is granted upon condition that defendant Paul B. Kirsch, M.D. shall serve an answer within 20 days of service of a copy of the order of this Court with notice of entry.

Memorandum:  Paul B. Kirsch, M.D. (defendant), as limited by his brief, appeals from an order denying that part of his motion seeking to vacate the default judgment entered against him.   At the outset, we note that Supreme Court's failure to rule on that part of the motion seeking dismissal of the complaint against defendant is deemed a denial thereof (see Matijiw v New York Cent. Mut. Fire Ins. Co., 15 AD3d 875, 876;  Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 864).   As noted, however, defendant's brief is limited to that part of his motion seeking to vacate the default judgment.   On the merits, we agree with plaintiff that defendant failed to establish that he did not receive actual notice of the summons and complaint as required by CPLR 317, and that defendant failed to establish a reasonable excuse for his default under CPLR 5015(a)(1).   Nevertheless, under the circumstances of this case, we exercise our broad discretionary power to vacate the default judgment (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68;  Matter of County of Ontario [Middlebrook], 59 AD3d 1065, 1065).   The court granted a default judgment on the first, fourth and fifth causes of action sounding in, respectively, conspiracy and conversion, breach of an employment agreement, and fraud and defamation.   The court also awarded damages of $250,000, $953,011.44 and $1,000,000, respectively, on those causes of action.   First, with respect to the first cause of action, we note that “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” (Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398, 1400 [internal quotation marks omitted] ).   Second, we question the reasonableness of the court's award of damages, particularly in light of the fact that the record does not reflect how the court determined those awards.   Third, given the lack of detail in the complaint (see generally CPLR 3016[a], [b] ), we also question plaintiff's entitlement to judgment with respect to the alleged fraud and defamation.   We therefore exercise our “inherent authority to vacate the default judgment ‘for sufficient reason and in the interests of substantial justice’ “ (Middlebrook, 59 AD3d at 1065, quoting Woodson, 100 N.Y.2d at 68), and we grant that part of defendant's motion seeking to vacate the default judgment entered against him upon condition that he shall serve an answer within 20 days of service of a copy of the order of this Court with notice of entry.

Frances E. Cafarell

Clerk of the Court