Wade Clark Mulcahy LLP

<p style="text-align: justify;"><em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/03/Solomon-v.-Gun-Hill-Assoc-Trust.pdf">Solomon v. Gun Hill Assoc Trust</a>,</em> No. 24150, 2021 WL 923114 (Bronx Cty. Sup. Ct. Feb. 26, 2021) is a personal injury case, wherein Plaintiff alleged damages after a trip-and-fall in a driveway leading to a parking lot jointly used by several businesses. Defendant Dunkin’ Donuts Franchising, LLC (“Dunkin”) previously moved for summary judgment on the grounds that – by virtue of its franchise agreement – it did not own, operate, maintain, or manage the subject premises or location at the time of the accident. Plaintiff failed to timely oppose Dunkin’s motion, which resulted in a default. In <em>Solomon</em>, Plaintiff moved to vacate the Court’s decision and order, which granted Dunkin’s motion for summary judgment upon default.</p>
<p style="text-align: justify;">It is well-established that a party seeking to vacate a default must establish: (1) a reasonable excuse for the default; and (2) a potentially meritorious claim or defense. Here, Plaintiff’s counsel argued that he personally suffered illness during the COVID-19 pandemic and that the Court’s order of default was in contravention of the Governor’s Executive Orders, which tolled some legal deadlines. The Court determined counsel’s illness was “uncontroverted” proof to satisfy the reasonable excuse prong. However, the Court refuted that its order of default violated the Governor’s relevant executive orders, which – according to the Solomon Court – did not toll “all deadlines,” including the time to serve answering papers on a motion.</p>
<p style="text-align: justify;">However, notwithstanding the foregoing, the Court continued, that Plaintiff failed to satisfy the meritorious claim prong. Specifically, Dunkin’s supporting papers established it did not own, care for, operate, manage, or control the premises. Dunkin also established it did not control or engage in the “day-to-day activities necessary to carry on the business operations of the Dunkin’ franchise at issue in this action.” Thus, Plaintiff failed to raise questions of fact to the contrary, since the franchise agreement did not address Dunkin’s duty to maintain the driveway. Plaintiff also failed to establish summary judgment was premature, since Plaintiff’s mere hope he would uncover evidence to prove the case provided no basis for postponing a decision on a summary judgment motion. <em>See Jones v. Surrey Coop. Apts., Inc</em>., 263 A.D.2d 33, 38 (1st Dep’t 1999). Accordingly, Plaintiff’s motion to vacate the dismissal was denied, on the grounds that the action lacked merit against Dunkin.</p>
<p style="text-align: justify;">The main takeaways from <em>Solomon</em> are twofold: (1) illness caused by COVID-19 can establish the “reasonable excuse” portion of a motion to vacate a default judgment; but (2) once a default is granted, the defaulting party remains disadvantaged by having to overcome the meritorious claim or defense prong. Lastly, it is plausible numerous appeals will follow from similar decisions with respect to the interpretation of the Governor’s COVID-19 executive orders. Defaulting litigants who disagree with the <em>Solomon</em> Court’s interpretation will likely consume multiple cups of coffee as they await appellate adjudication of such executive orders, which – vis-à-vis artful lawyering – are open to reasonable interpretations.</p>
<p style="text-align: justify;">Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>