FILED: NASSAU COUNTY CLERK 09/29/2014 11:57 AM
`FILED: NASSAU COUNTY CLERK 092014 11:57 A
`NYSCEF DOC. NO. 9
`NYSCEF DOC. NO.
`9
`
`INDEX NO. 603947/2014
`INDEX N0- 603947/20,“.
`RECEIVED NYSCEF: 09/29/2014
`R~.c~.1v~.D \IYSCEF: 09/29/2d\1g
`
`SHORT FORM ORDER
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NASSAU
`
`Present:
`
`HON. DANIEL PALMIERI
`
`Justice Supreme Court
`------------------------------------------------------------------- --x
`
`TRIAL TERM PART: 21
`
`INDEX NO.: 603947/14
`MOTION DATE:9-22-14
`SUBMIT DATE:9-22-14
`SEQ. NUMBER — 001
`
`MICHAEL J. BORRELLI, and BORRELLI &
`ASSOCIATES, P.L.L.C.,
`
`-against-
`
`Plaintiffs,
`
`ROSS ROSENFELD,
`
`Defendant.
`___________________________________________________________________ --x
`
`The following papers have been read on this motion:
`
`Notice of Motion, dated 9-11-14 ............................. ..1
`
`Affirmation in Support, dated 9-11-14.................. ..2
`Affidavit of Merit in Support, dated 9-11-14........ ..3
`Affirmation in Opposition, dated 9-19-14 .............. ..4
`
`The motion, pursuant to CPLR §32l5, of the plaintiff (Seq. 001) to enter a default
`
`judgment against defendant based on the failure to interpose a timely response to the
`
`summons and complaint
`
`is denied. Defendant’s opposition is deemed a cross motion for
`
`leave to serve a late answer and is granted. Although the better course would have been for
`
`the defendant to submit a proposed answer with his opposition and make a cross motion, the
`
`Court in the interest ofjustice will overlook such deficiencies and permit defendant to serve
`
`a late answer provided it is served no later then 10 days after service upon defendants’
`
`attorney by plaintiff of a copy of this Decision and Order with Notice of Entry.
`
`
`FILED: NASSAU COUNTY CLERK 092014 11:57 A
`NYSCEF DOC. NO. 9
`NYSCEF DOC. NO.
`9
`
`INDEX NO. 603947/2014
`INDEX N0- 603947/20,“.
`RECEIVED NYSCEF: 09/29/2014
`R~.c~.1v~.D \IYSCEF: 09/29/2d\1g
`
`SHORT FORM ORDER
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NASSAU
`
`Present:
`
`HON. DANIEL PALMIERI
`
`Justice Supreme Court
`------------------------------------------------------------------- --x
`
`TRIAL TERM PART: 21
`
`INDEX NO.: 603947/14
`MOTION DATE:9-22-14
`SUBMIT DATE:9-22-14
`SEQ. NUMBER — 001
`
`MICHAEL J. BORRELLI, and BORRELLI &
`ASSOCIATES, P.L.L.C.,
`
`-against-
`
`Plaintiffs,
`
`ROSS ROSENFELD,
`
`Defendant.
`___________________________________________________________________ --x
`
`The following papers have been read on this motion:
`
`Notice of Motion, dated 9-11-14 ............................. ..1
`
`Affirmation in Support, dated 9-11-14.................. ..2
`Affidavit of Merit in Support, dated 9-11-14........ ..3
`Affirmation in Opposition, dated 9-19-14 .............. ..4
`
`The motion, pursuant to CPLR §32l5, of the plaintiff (Seq. 001) to enter a default
`
`judgment against defendant based on the failure to interpose a timely response to the
`
`summons and complaint
`
`is denied. Defendant’s opposition is deemed a cross motion for
`
`leave to serve a late answer and is granted. Although the better course would have been for
`
`the defendant to submit a proposed answer with his opposition and make a cross motion, the
`
`Court in the interest ofjustice will overlook such deficiencies and permit defendant to serve
`
`a late answer provided it is served no later then 10 days after service upon defendants’
`
`attorney by plaintiff of a copy of this Decision and Order with Notice of Entry.
`
`
`
`All requests for relief not specifically addressed are denied.
`
`This is the second of two actions between parties. As gleaned from the papers both
`
`actions arise from the same facts and series of events. The first action is not assigned to this
`
`Court.
`
`In this action plaintiffs’ are suing under the trademark provision of New York’s
`
`General Business Law.
`
`In the first action between the same parties under Index
`
`#600668/2014, the claim is for defamation.
`
`Defendant and his counsel claim to be defending the first action and the attorneys
`
`have been in contact with each other, however, plaintiffs did not inform either defendant or
`
`his counsel when this action was commenced and defendant states that if and when he was
`
`served he believed the papers were in connection with the prior action which has a similar
`
`Index Number. Defendant has also proffered a potential meritorious defense to this action
`
`claiming that his use of plaintiffs’ trademark was for purposes of parody and did not
`
`constitute a trademark violation or infringement.
`
`This action was commenced on July 31, 2014 and defendant was personally served
`
`on August 6, 2014 meaning that his time to respond expired on August 26, 2014. There is
`
`no communication or correspondence about this action from plaintiffs’ counsel or plaintiff
`
`to defendant or his counsel and this motion was made on September 11, 2014.
`
`Although trademark violations are alleged, neither the complainant nor the moving
`
`papers contain any copies of the trademarks or the alleged violations, thereby depriving this
`
`
`
`Court of the ability to assess the merit of plaintiffs’ claims. See, CPLR §32l5(f).
`
`The Court finds that by reason ofthese omissions the plaintiff has failed to adequately
`
`demonstrate the merit of its claims and thus entitlement to a default judgment. See, Dole
`
`Food Co. v. Linden General Insurance Co., 66 AD3d 1493 (4”‘ Dept. 2009); Matone v.
`
`Sycamore Realty Corp, 31 AD3d 721 (2d Dept. 2006).
`
`Given that the relief sought includes a declaratory judgment and an injunction, the
`
`Court is unable to conclude that the merit of the claims made justifies such remedies. A
`
`default judgment in a declaratory judgment action will not be granted based on a default in
`
`pleading alone. It
`
`is necessary in such instances that plaintiffs establish a right to a
`
`declaration against a defendant. Merchants Ins. Co. ofNew Hampshire, Inc. v. Long Island
`
`Pet Cemetery, Inc., 206 Ad2d 827 (4”‘ Dept. 1994). Here plaintiffs are seeking a declaratory
`
`judgment as well as injunctive relief, and have failed to make aprimafacie showing of merit.
`
`See, Manhattan Telecommunications Corp. V. H&A Locksmith, Inc., 21 NY3d 200 (2013).
`
`Cf, Triangle Properties 2 LLC v. Narang, 773 AD3d 1030 (2d Dept. 2010). Neither the
`
`complaint nor the submission provided sufficient factual content for the Court to determine
`
`that such relief is appropriate. Hence plaintiffs have failed to make a primafacie showing
`
`of the facts constituting the claim. CPLR §3215 (t).
`
`
`
`In order to be relieved of his default, defendant
`
`is required to demonstrate a
`
`meritorious defense to the complaint and a reasonable excuse for the default Falla v. Keel
`
`Holdings, LLC, 50 AD3d 844 (2d Dept. 2008); Taylor v. Saal, 4 AD3d 467 (2d Dept. 2004).
`
`In determining whether to permit late service of a responsive pleading, courts should
`
`consider the extent of the delay, whether it was wilful, presence or absence of prejudice, and
`
`the public policy of resolving cases on their merits. Harcztark 12. Drive Variety, Inc., 21
`
`AD3d 876 (2d Dept. 2005).
`
`Here, the issues in both pending actions are intertwined and based on the same
`
`documents, events and conduct, and defendant has submitted evidence of merit with respect
`
`to its claims and a lack of merit to the plaintiffs claim. Defendant has provided a reasonable
`
`explanation for a failure to serve a timely answer and has demonstrated that he acted
`
`promptly to obtain and consult with counsel. The default was only for a matter of 16 days and
`
`given the history of prior litigation cannot be said to be willful or intentional. Prejudice to
`
`plaintiffs is neither perceived nor claimed.
`
`Based on the foregoing, it is appropriate to permit the service of a late answer and to
`
`deny the motion for a default judgment See, Performance Construction Corp, v. Huntington
`
`Building, LLC, 68 AD3d 737 (2d Dept. 2009); Rottenberg 12. Preferred Property
`
`Management, Inc. 22 AD3d 826 (2d Dept. 2005).
`
`
`
`This shall constitute the Decision and Order of this Court.
`
`ENTER
`
`\.
`
`,
`
`&
`
`HON. DANIEL PALMIERI
`
`Supreme Court Justice
`
`DATED:September 25, 2014
`
`Attorney for Plaintiff
`Borrelli & Associates, PLLC
`
`By: Alexander T. Coleman, Esq.
`1010 Northern BlVd., Suite 328
`Great N€C1(, NCW YOFK 11021
`
`Attorney for Defendant
`Seth Rosenberg, Esq.
`By: Seth Rosenberg, Esq.
`118-21 Queens BlVd., Suite 509
`
`Forest Hills, New York 11375
`
`
`
`.
`
`.\U,\.. Y
`CL:m,{'S O1:F|C[‘;
`
`,,
`
`
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