In Mrkulic v Peters 2023 NY Slip Op 33930(U) November 2, 2023
Supreme Court, Kings County Docket Number: Index No. 505025/2020
Judge Debra Silber points out a vast number of errors that took place before she was assigned to the case. She rules that none can be fixed by her.
“In Motion Sequence #6, defendants move to reargue the court’s last decision in
this case, issued on August 8, 2023, for motion sequence #5, which granted plaintiff’s
motion to reargue the court’s decision on motion sequence #3, and, upon reargument,
reinstated the prior order, which found defendants in default. The court denies
defendants leave to reargue.”
“The court notes that there are errors in some of the prior orders issued under the
2012 index number, as well as under this index number, but they are not this court’s
errors, and this court cannot fix them. For example, in the personal injury case brought
in 2012, one defendant (Carlisle) moved to vacate his default and dismiss the case
against him on June 21, 2019, after the plaintiff’s attorney (defendant in this action) had
successfully obtained the attachment of Carlisle’s bank account and the garnishment of
his salary. The court denied his motion, by order dated July 23, 2019, as “moot”, citing
an order dated January 18, 2018, which he states dismissed the entire case, and then
the court lifted the restraints on Carlisle’s bank account and returned his garnished funds. But the order of January 18, 2018 did not dismiss the case, as the case had been
disposed by the entry of judgment in 2013, it restored it.
The file is filled with subsequent activity, all of which is for one reason or another,
improperly carried out. For example, plaintiff’s prior attorney stipulated, after the judgment was entered, to vacate the judgment against the defendant Zen Palate and allow Zen Palate and Theresa Hwa to answer. It also changed the name of Zen Palate Union Square LLC to Platinum Z, Inc. d/b/a Zen Palate, but the caption was never actually amended, as the stipulation was not “so-ordered,” and the judgment was not actually vacated. Nor was the case restored so a preliminary conference could be held. Nonetheless, these defendants filed an answer to the complaint. Then, another
defendant, Mr. Lindo, made a motion to vacate his default, and a stipulation was filed
discontinuing the action against him. Then, defendants here, in 2017, realized that the
stipulation permitting the two defendants to answer had not restored the case to active
status, as it was post-judgment, and defendant Peters made a motion for this relief. It
was granted, and the January 18, 2018 order restored it and set it down for a preliminary conference. Unfortunately, this order also vacated the entire judgment. It did not dismiss the case.
By a subsequent order dated May 17, 2018, however, the judge in the Intake part
did dismiss the case, for plaintiff’s not appearing for a preliminary conference. Instead of just the case against Zen Palate and Ms. Hwa being dismissed, because the entire
judgment had been vacated, that order dismissed the entire case and plaintiff had to move to restore the case. He did so, which was granted by the January 18, 2018 order.
Then, Carlisle made his motion, by order to show cause, to release the funds
frozen by his bank and have his garnished wages returned to him. He averred that he
had not been served with the summons and complaint. The affidavit of service states he was served by “nail and mail” service. As to the merits, he said that the criminal case had been dismissed as he was not the perpetrator of the assault. Plaintiff made a motion shortly after, to release Carlisle’s bank funds to plaintiff. Nobody seemed to be aware that the case had been dismissed on May 17, 2018.
On August 8, 2019, defendant herein, on behalf of plaintiff, made a motion to reinstate the default judgment, averring that it was only supposed to have been vacated as
against Zen Palate.
On October 2, 2019, plaintiff’s motion for the funds was denied as “moot.”
Plaintiff’s motion to reinstate the default judgment was granted, on a default judgment
order form which directed that Mr. Carlisle be removed from the judgment.
To be clear, instead of granting Carlisle’s motion to vacate his default and directing
him to answer the complaint, or scheduling a traverse hearing on the issue of service, as requested in his motion, the court issued an order removing Mr. Carlisle from the
judgment, but made no provision to continue the action against him, or Zen Palate and
Ms. Hwa. The fact that the case had been dismissed as against Zen Palate and Theresa
Hwa is not mentioned. The fact that it had been discontinued as against Edbert Lindo is
not mentioned. The order provides that the judgment was reinstated against all
defendants except Carlisle. The judgment had never been entered against Ms. Hwa, and it was not reinstated against her. On 3/30/23, the judgment was still on the judgment roll in the County Clerk’s office as against all original judgment debtors, with a notation “default judgment does not apply to Benjamin Carlisle.”
In this action, the defendants’ default which resulted in the March 1, 2022 order
was not placed on a default judgment order form sending the matter for an inquest on
damages, but instead an order was erroneously issued that directed judgment be entered against this defendant, an attorney, for the full amount of the personal injury case judgment entered in the 2012 case, with interest from the date of the tort. The County Clerk has entered this judgment. The order should have referred the plaintiff to an inquest to determine the plaintiff’s damages against the defendant attorney. The complaint in this action, verified by counsel on February 2, 2020, misrepresents that the judgment in the 2012 personal injury case had been vacated, which was somehow defendant’s fault, and thus plaintiff was entitled to have the full amount of his judgment against the tortfeasors entered against his attorney. However, the court did not vacate the judgment, but it did seemingly vacate it against Mr. Carlisle on October 2, 2019. Further, the complaint clearly states that defendant was hired in 2017 to enforce the judgment. He could not be responsible for interest from 2012. Counsel for plaintiff (the defendant herein) should have moved to reargue the October 2, 2019 order, so the case against Mr. Carlisle could be reinstated and he could be given time to answer the complaint. Now, plaintiff has a judgment against all of the defendants in the other action, which includes the mis-named restaurant, but not Ms. Hwa or Mr. Carlisle, who may or may not have been the tortfeasor, and a judgment against defendants herein, for the same sum, which is a duplicate recovery if the judgments are both successfully enforced.
As none of the errors were made by the undersigned, this court is powerless to
correct them. Leave to reargue is denied.”