Brounstein v. Rubin

Law Office of Allen Schwartz, Esq. (Allen Schwartz of counsel), for appellant. Steven L. Brounstein, respondent pro se.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2018. The order denied defendant Harry Rubin's motion to vacate so much of a judgment of that court entered June 26, 2017 as was entered against him upon his failure to appear or answer the complaint and, upon such vacatur, to dismiss so much of the complaint as was asserted against him or, in the alternative, for leave to interpose an answer.

ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant Harry Rubin's motion to vacate so much of the judgment entered June 26, 2017 as was entered against him and, upon such vacatur, to dismiss so much of the complaint as was asserted against him or, in the alternative, for leave to interpose an answer.

In this action to recover payment for legal services rendered, both defendants failed to appear or answer the complaint, and a judgment was entered against them in the total sum of $18,773.77. Harry Rubin (defendant) subsequently moved to vacate so much of the judgment as was entered against him pursuant to CPLR 5015 (a) (4) and, upon such vacatur, to dismiss so much of the complaint as was asserted against him or, in the alternative, to vacate so much of the judgment as was entered against him pursuant to CPLR 317, and, upon such vacatur, for leave to [*2]interpose an answer. The Civil Court denied defendant's motion.

For the reasons stated in Farkas v Rubin (___ Misc 3d ___, 2019 NY Slip Op ____ [appeal No. 2018-1008 K C], decided herewith), the order is reversed and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant's motion to vacate so much of the judgment entered June 26, 2017 as was entered against him and, upon such vacatur, to dismiss so much of the complaint as was asserted against him or, in the alternative, for leave to interpose an answer.

WESTON and ELLIOT, JJ., concur.

PESCE, P.J., taking no part.