The opinion
Rud v Paukman
2025 NY Slip Op 32277(U)
June 17, 2025
Supreme Court, Kings County
Docket Number: Index No. 521749/2022
Judge: Ingrid Joseph
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 06/26/2025 03:08 PM INDEX NO. 521749/2022
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 06/26/2025
At an IAS Part 83 of the Supreme Court
of the State ofNew York held in and for
the County of Kings at 360 Ada~Street,
Broo lyn, New York, on the J.r.
day of
v\L_ 2025.
PRESENT: HON. INGRID JOSEPH, J.S.C.
SUPREME COURT OF THE STATE OF
NEW YORK COUNTY OF KINGS
----------------------------------------------------------------------X
KA TERYNA RUD,
Index No.: 521749/2022
Plaintiff(s)
-against- DECISION AND ORDER
JOSEPH PAUKMAN, LEV PAUKMAN, individually and as Mot. Seq. Nos. 10-11
owner, officer, director, manager, representative, and/or agent of
A VEX PRIMARY MEDICAL CARE, AVEX TESTING
CORP, A VEX MEDICAL TESTING, PC, and A VEX
MEDICAL MANAGEMENT, PC,
Defendant( s)
----------------------------------------------------------------------X
The following e-filed papers read herein: NYSCEF Doc Nos. :
Motion Seq No.10
Notice of Motion/Affinnation in Support/Affidavits Annexed
Exhibits Annexed ... .. .. ..... ... ..... . ..... . .... .... ...... . ........ .. ..... .. .... .. . 114-117,133
Affirmation in Opposition/Affidavits Annexed/Exhibits Annexed ....... . . 127- 129, 131
Motion Seq No.11
Notice of Cross-Motion/Affinnation in Support of Cross-Motion/
Exhibits Annexed . ... ............ .. . .. ......... ... ...... .. ... .. .. .. .. ... ... ....... . 120, 130
Affinnation in Opposition of Cross-Motion/Exhibits Annexed .. ... .. ..... . 123
Plaintiff Kateryna Rud ("Plaintiff') commenced this action seeking damages, in part, for alleged
sexual harassment and discrimination, hostile work environment, and retaliation under New York State and
New York City human rights Jaws. Plaintiff asserts that she is a fonner employee of defendant Ave X, 1
wh ich is owned by Defendant Dr. Lev Paukman (collectively, the "Ave X Defendants"). Defendant Joseph
Paukman ("Paukman") is Dr. Lev Paukman's son, and the alleged perpetrator of the sexual harassment
(together with the Ave X Defendants, "Defendants").
1 Plaintiffs complaint does not specify which corporate entity she was employed by. Therefore, the Court will refer
to defendants Ave X Primary Medical Care, Ave X Testing Corp, A vex Medical Testing, PC, and A vex Medical
Management, PC as a single entity-"Ave X".
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Both Plaintiff and Paukman have filed motions. Plaintiff moves for an order, pursuant to CPLR
5015(a)(l), vacating the dismissal of this action on the grounds of excusable default (Mot. Seq. No 10).2
Specifically, Plaintiffs action was marked disposed on July 15, 2024, by the Final Conference Part ("FCP")
because no FCP order was submitted, no motion was pending, and the Note of Issue deadline had expired
(see NYSCEF Doc No. 67). Plaintiff contends that she was waiting on a decision on her motion to strike
Paukman's answer (Mot. Seq. No. 3) and discovery was outstanding. Plaintiff alleges that her motion to
strike was denied for nonappearance. As for a reasonable excuse, Plaintiffs counsel contends that he missed
a July 1, 2024, hearing because the email regarding that appearance went to his spam folder. With respect
to the merits of Plaintiffs claim, counsel submits an affidavit from Plaintiff, which was previously
submitted to the Court in relation to a separate motion. 3
The Ave X Defendants oppose the motion on the grounds that Plaintiff has not met her burden of
showing a meritorious cause of action through an affirmation. In addition, the Ave X Defendants argue that
Plaintiffs affidavit, which was submitted in support of her prior application for a pre-judgment attachment
of Dr. Paukman's assets, cannot be used to satisfy CPLR 5015 (a). Further, the Ave X Defendants argue
that in opposition to Plaintiffs prior motion to vacate, which was marked off, the Defendants noted that
Plaintiff did not submit an affidavit of merit. Thus, the Ave X Defendants contend that rather than moving
to restore and refile the prior motion to vacate, Plaintiff has filed a new motion to cure the deficiencies that
would have been fatal to the prior motion had it been heard by the Court. In his opposition, Paukman also
argues that Plaintiff has not submitted a sufficient affidavit of merit; thus, requiring denial of the motion.
In reply, Plaintiff argues that the Defendants' claims of procedural deficiencies are unfounded and
misrepresent the record. Contrary to the Defendants' assertion that Plaintiff failed to submit an affidavit of
merit, Plaintiff previously filed an affidavit, which provided a detailed factual basis for the claims. In
addition, Plaintiff refers to text messages and an affidavit of non-party Marland Kaplan, both previously
submitted to the Court, to establish Paukman's harassing behavior.
"In order to vacate her default in filing a note of issue and appearing on the hearing date, the [party]
was required to demonstrate both a reasonable excuse for her default and a potentially meritorious claim to
be raised at the hearing" (GMAC Mtge. , LLC v Yun, 206 AD3d 796, 797 [2d Dept 2022]; CPLR 5015 [a]
[I]). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion,
and the court has discretion to accept law office failure as a reasonable excuse where that claim is supported
2 This is Plaintiffs second motion to vacate pursuant to CPLR 5015 (a)(l). Plaintiffs prior motion (Mot. Seq. No. 7)
was marked off on January 15, 2025, after Plaintiffs counsel did not appear for oral argument.
3 Plaintiff admits that this affidavit was first submitted to the Court on September 15, 2023 (NYSCEF Doc No. 115,
1 11; see NYSCEF Doc No. 21 ). The affidavit attached to this motion is identical to the 2023 affidavit except this
version was notarized on December 11, 2024 (see NYSCEF Doc No. 116).
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by a detailed and credible explanation of the default at issue" (Ki Tae Kim v Bishop, 156 AD3d 776, 777
[2d Dept 2017] [internal citations omitted]).
Here, Plaintiffs counsel presents conflicting excuses, none of which are persuasive. First,
Plaintiffs counsel alleges that to his knowledge there was no scheduled appearance listed on eCourts for
July 1, 2024. He then states that "the email regarding the appearance mistakenly went to [his] spam folder"
(NYSCEF Doc No. 115, ,r 3). If there is no appearance, it begs the question as to why there would be an
email notification. The Court notes that Plaintiff's counsel failed to provide any evidence of this supposed
email. Second, counsel claims that he "may have mis-calendared the date" (id ,r 5). A cursory review of
the eCourts website reveals that the reason there is no July 1, 2024, appearance date for the motion to strike
is because it was in fact scheduled for May 8, 2024. It appears that Plaintiffs counsel has mistaken the date
of the order denying the motion for nonappearance for the date of the motion (see NYSCEF Doc No. 61 ).
Thus, Plaintiffs counsel has not presented any excuse, let alone a reasonable one, for missing the actual
hearing on the motion (see Rudsky v Schechtman, 219 AD3d 1453, 1454-1455 [2d Dept 2023] [finding that
counsel's failure to appear at oral argument because counsel was unaware that it had been scheduled was
unreasonable under the circumstances]). 4
Even if the Court were to accept Plaintiffs confusion as to the date of the appearance, the fact that
discovery is outstanding is not an excuse for failing to file an FCP order, which allows parties to schedule
any remaining discovery. Accordingly, the Court finds that no reasonable excuse was provided, and the
Court need not consider whether Plaintiff demonstrated a meritorious cause of action (Countrywide Home
Loans, Inc. v Vittorio, 178 AD3d 1017, l 0 19 [2d Dept 2019]; Stein v Davidow, Davidow, Siegel & Stem,
LLP, 157 AD3d 741, 743 [2d Dept 2018]). 5 For these reasons, Plaintiffs motion to vacate is denied.
The Court next turns to Paukman's motion, which seeks sanctions and attorney fees against
Plaintiffs counsel for counsel's multiple nonappearances (Mot. Seq. No 11). Paukman argues that
Plaintiffs counsel, Mr. Usher, has repeatedly failed to appear for scheduled court proceedings. As a result,
Paukman requests $2,500 in sanctions and an additional $2,500 in attorney fees, citing the burden imposed
on the Court and opposing counsel (see NYSCEF Doc No. 120). Plaintiff opposes this motion on the
grounds that Paukman's cross-motion is wholly without merit and ba,sed on misleading assertions.
According to Plaintiff, Paukman falsely claims that Plaintiffs failure to appear in court were the result of
4 In this action, Plaintiff has failed to appear on two return dates, causing her motions (Mot. Seq. Nos. 3 and 7) to be
marked off the calendar. In addition, Plaintiff failed to file a Note of Issue (or otherwise move to extend the time to
do so) or file an FCP order. It also seems that Plaintiff failed to appear for a conference on May 23, 2024, before the
Note of Issue-Final Conference Part. "While a court may, in the exercise of its discretion, accept law office failure
as a reasonable excuse, a pattern of willful default and neglect should not be excused" ( Campenni v Ridgecroft
Estates Owners, Inc., 261 AD2d 496, 497 [2d Dept 1999] [internal citations and quotation marks omitted]).
5 Assuming arguendo that the Court accepted Plaintiffs excuse of law office failure, Plaintiffs affidavit contains
vague and conclusory statements, which are insufficient to adequately demonstrate that her claims have merit (see
Peterson v Scandurra Trucking Co., 226 AD2d 691,692 [2d Dept 19961).
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calendaring errors since Paukman files multiple motions in different actions that "keeping track of all of
the motion hearing dates has become an extensive task in its own right" (NYSCEF Doc No. 123, ,r 13). In
his reply, Paukman reiterates his request for Plaintiffs counsel to be sanctioned in the amount of $2,500
per missed hearing, along with attorney fees.
Upon consideration of the papers, the Court does not find any merit to Paukman's requests for
sanctions and attorney fees. While Plaintiffs counsel has failed to appear at least twice on motions before
this part, the Court declines to exercise its discretion to impose financial sanctions or reasonable attorney's
fees (see 22 NYCRR 130-2.1 [a]).
Accordingly, it is hereby
ORDERED, that Plaintiffs motion (Mot. Seq. No. l 0) to vacate is denied; and it is further
ORDERED, that Paukman' s cross-motion (Mot. Seq. No. 11) for sanctions and attorney fees is
denied.
All other issues not addressed herein are without merit or moot.
This constitutes the decision and order of the Court.
OSEPH, J.S .C.
Hort rid Joseph
Supreme Court Justice
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