NEUMAN v. GREENBLATT

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

Victor NEUMAN, et al., respondents-appellants, v. Joseph GREENBLATT, appellant-respondent.

Decided: April 26, 1999

SONDRA MILLER, J.P., CORNELIUS J. O'BRIEN, DAVID S. RITTER and FRED T. SANTUCCI, JJ. Vogel & Mongelli, New York, N.Y. (Peter F. Vogel of counsel), for appellant-respondent. Howard R. Birnbach, Great Neck, N.Y., for respondents-appellants.

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals from so much of an order of the Supreme Court, Kings County (Barron, J.), dated March 31, 1998, as denied his motion to vacate an order of the same court dated March 13, 1997, finding him in default for failure to appear, and a judgment of the same court dated May 29, 1997, entered upon his default, except to the extent of vacating so much of the judgment as awarded the plaintiffs the principal sum of $400,000 for punitive damages.   The plaintiffs cross-appeal from so much of the order dated March 31, 1998, as vacated the award of punitive damages.

ORDERED that the order dated March 31, 1998, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 To be relieved from a default, a party must demonstrate the existence of a reasonable excuse and a meritorious defense (see, Garkusha v. Mutual of Omaha Ins. Co., 259 A.D.2d 466, 684 N.Y.S.2d 882;  Domenikos v. Miranda, 255 A.D.2d 481, 680 N.Y.S.2d 643;  Chavez v. Errico, 255 A.D.2d 353, 679 N.Y.S.2d 843).   Contrary to the defendant's contentions, his conclusory assertions that he defaulted in his defense of the action because he was burdened by “mental and physical stress” and “financial strain” resulting from his defense of factually-related criminal charges that ultimately led to his conviction and disbarment (see, Matter of Greenblatt, 212 A.D.2d 83, 628 N.Y.S.2d 605), do not constitute a reasonable excuse (see, Whitney v. Stewart, 175 A.D.2d 674, 572 N.Y.S.2d 597;  Smith v. Fritz, 148 A.D.2d 438, 538 N.Y.S.2d 590;  Zolov v. Donovan, 138 A.D.2d 484, 526 N.Y.S.2d 28;   Burks v. Weiss, 137 A.D.2d 646, 524 N.Y.S.2d 737;  Smallridge v. Macalaster Bicknell Co. of N.Y., 134 A.D.2d 880, 522 N.Y.S.2d 52).   Moreover, the defendant failed to demonstrate the existence of a meritorious defense.   Thus, the court properly denied the defendant's motion insofar as he sought to vacate his default.

 Nevertheless, “[i]t has long been held that courts have inherent power beyond that which is contained in the CPLR * * * to open defaults * * * and where the amount awarded on a default judgment has been perceived as excessive the courts have exercised their inherent power to modify or reduce the amount” (Cervino v. Konsker, 91 A.D.2d 249, 253, 458 N.Y.S.2d 660;  see, Midnight Ears v. Clear-Vu Packaging, 81 A.D.2d 907, 439 N.Y.S.2d 397;  see also, Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842).   Here, the complaint did not state a claim for punitive damages (see, CPLR 3215[b];  Chew Wah Bing v. Sun Wei Assn., 191 A.D.2d 361, 595 N.Y.S.2d 417).  Moreover, there is no indication in the record as to what proof, if any, the plaintiffs adduced at the inquest to satisfy their burden of establishing their entitlement to punitive damages (see, Paulson v. Kotsilimbas, 124 A.D.2d 513, 508 N.Y.S.2d 428;  see also, Strauss v. 926 Park Ave. Corp., 184 A.D.2d 293, 584 N.Y.S.2d 309).   An unwarranted and excessive award after inquest will not be sustained, as to do otherwise “would be tantamount to granting the plaintiffs an ‘open season’ at the expense of a defaulting defendant” (Brosnan v. Behette, 186 A.D.2d 165, 167, 587 N.Y.S.2d 953;  see also, Bohlman v. Bohlman, 114 A.D.2d 832, 494 N.Y.S.2d 743).   Under the circumstances at bar, the Supreme Court providently exercised its inherent power by vacating only so much of the default judgment as awarded the plaintiffs the principal sum of $400,000 for punitive damages.

MEMORANDUM BY THE COURT.

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