Incarceration for not paying child support is unusual but certainly not unheard of. This case illustrates the defense strategy of receding into the background and waiting while the controversy swirls around the other defendants. In this case more than a year went by after a default and the defendant obtained dismissal. Rivera v Kerr 2019 NY Slip Op 33047(U)
October 11, 2019 Supreme Court, Suffolk County Docket Number: 17736/2015 Judge: Sanford Neil Berland is also notable for having 7 prior judges all recuse themselves.
“The current action alleges legal malpractice in connection with, among other things. the handling of a prior action concerning and a contempt proceeding arising from the Settlement Agreement and Amendment to Separation Agreement (individually, the “‘Settlement Agreement” and the ··Amendment”; together. the ‘”Amended Settlement Agreement”) and the Judgment of Divorce that resolved the matimonial action between plaintiff and his Conner wife . Plaintiff alleges that he retained the defendants to bring and prosecute a plenary action challenging the
Amended Settlement Agreement as defective and unenforceable and to defend him in the contempt proceedings that were brought against him for allegedly violating the Amended Settlement Agreement. The result of those contempt proceedings, which were conducted in Family Court. was that plaintiff was found to have willfully failed to pay court-ordered child
support and maintenance to his ex-wife and was sentenced to serve six months of incarceration. and plaintiff now claims that the defendants committed legal malpractice by failing to challenge the validity of the Amended Settlement Agreement. For their part. defendants maintain that the Amended Settlement Agreement was not defective; that even if it was. plaintiff, as a matter of law. could not have been saved from being held in contempt: and that the complaint is otherwise without merit. ”
“On June 3, 20 13, defendant Sullivan. a partner in the Long Tuminello law firm, requested a Preliminary Conference in the plenary action. The application was granted, and on June 15, 2013. Sullivan sent an email to plaintiff advising him that a preliminary conference would be held in the plenary action in July 2013. Plaintiff sent a responding email in which he directed that Long Tuminello “‘hold off on doing any further work ..” and to … “put the case on hold” indicating that plaintiff was concerned about cost and was ‘”exploring other avenues:· On June
28, 20 l 3. plaintiff retained defendant Del Col to represent him in the plenary action and to file and prosecute a writ of habeas corpus regarding the contempt finding in Family Court. Del Col filed the writ. On .July 18, 20 13, Del Col appeared for the plaintiff at the preliminary conference held in the plenary action. On October 10, 2013, Kathryn Rivera filed a motion to dismiss the plenary action for failure to state a cause of action. Del Col did not interpose an answer to the motion, and in an order dated May 29, 2014, the court dismissed the plenary action, holding, inter alia that plaintiff was estopped from seeking to set aside the Settlement Agreement in question as he had. by order to show cause in September 20 12. sought both to enforce the agreement and to modify it.
Defendant served the sentence imposed upon him by the Family Court. On October 8, 2015. he commenced the current action by filing a Summons With Notice, and on November 18, 2015, he filed the Verified Complaint. Seven Suffolk County justices. including Justice Luft,
were randomly assigned to preside over plaintiffs action and recused themselves before the matter was assigned to the undersigned. ”
“Defendant pro se Robert Del Col. Esq. (“Del Col'”) is moving: to dismiss the complaint against him (seq. #005 ) as abandoned pursuant to CPLR 3215[c). Plaintiff commenced this action by filing a summons with notice dated October 8.2015. Del Col served a notice of
Appearance dated October 26. 2015 upon plaintiff” with a demand that a complaint be served upon his office. Plaintiff served a Verified Complaint dated November 18, 2015 on all defendants. Del Col never answered the complaint.
Plaintiff contends that his complaint against Del Col is meritorious and never abandoned. He asserts that the fact that he defended a motion interposed by the Sallah defendants which was later withdrawn and served Del Col with opposing documents and judicial recusal orders related to plaintiff’s action constitutes evidence that he had not abandoned his claims against Del Col. He offers as excuses for his delay in seeking a default judgment against Del Col that plaintiff had
filed for bankruptcy and was unsure until the discharge in September 2017 “whether the current law suit would be considered part of the bankruptcy estate, and that he was suffering from post-traumatic stress syndrome as a result of his incarceration as well as fear induced by a series of judicial recusals in this case that rendered him incapable of handling the stress or making an application to a Suffolk County judge for a default judgment against Del Col.
When a plaintiff fails to seek leave to enter a default judgment within one year after a default has occurred, the action is deemed abandoned (see CPLR 3215(c): Geraghty v Elmhurst Hosp. Ctr. of N. Y. NYC Health & Hosps., Corp .. 305 AD2d 634. 759 NYS2d 888 [2d Dept 2003]). To avoid dismissal of the complaint as abandoned under such circumstances. a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment and demonstrate that the complaint is meritorious (Kay Waterproofing Corp. v Ray Realty Fulton Inc., 23 AD3d 624, 804 NYS2d 815 [1st Dept 2005]: HSBC Bank USA, Nat. Ass’n v Grella,”
Plaintift’s claims against Del Col essentially mirror those he has asserted against the other defendants and, for the same reasons those defendants are entitled to summary judgment, plaintiff’s claims against Del Col cannot be considered meritorious. Furthermore. plaintiff has
failed co explain why litigation with non-defaulting defendants excuses his failure timely to seek a default judgment against Del Col (see Private Capital Group, LLC v Hosseinipour. 170 AD3d 909, 911. 95 NYS3d 585 2nd Dept 2019). Nor do plaintiffs concerns with respect to his bankruptcy proceeding provide a reasonable excuse for that failure (see Pipinias v J. Sackaris & Sons, Inc .. supra). Finally. insofar as plaintiff was represented by counsel. his assertion that he could not tolerate the stress of making the application for a default judgment is not reasonable. Accordingly. defendant prose Robert Del Col’s motion to dismiss the complaint as a gainst him pursuant to CPLR 321 S[ c] is granted. “