JOAN A. MADDEN, Judge.
In this motion, defendant Leatrice Sutton, as Administratrix of the Estate of Percy Sutton, moves for an order pursuant to CPLR 5015(a)(1) vacating the default judgment entered on February 17, 2009, on the grounds that Percy Sutton had both a reasonable excuse for his failure to answer the complaint and a meritorious defense to the action, based on his mental condition at the time in issue. Plaintiff Beverly Hemmings opposes the motion, contending that defendant has failed to establish under New York legal standards that Percy Sutton's mental condition at the time of the underlying transaction and at the time of service of the summons and complaint, warrants vacating the default judgment.
In the complaint, plaintiff alleges that on March 15, 2003, Percy Sutton executed and delivered to plaintiff a promissory note in the amount of $2.5 million dollars ("the Note").
An order to show cause to vacate the default was made in October 2009. While that motion was pending, Percy Sutton died and his estate was substituted as defendant. The court extended time periods for discovery including depositions of various physicians and a psychiatrist who treated or examined the deceased, and permitted the parties to submit additional papers. Defendant contends that there is irrefutable proof from at least three physicians that Percy Sutton suffered from Alzheimer's disease when the Note was signed and at the time of service of the complaint in this action. Defendant also contends that there is evidence that the signature on the Note was not Percy Sutton's. Based on these contentions, defendant argues that the default should be vacated so that a jury can determine whether the Alzheimer's disease had progressed so far at the time that the Note was signed so as to invalidate the Note, and whether the signature on the Note is authentic.
Plaintiff opposes the motion on the grounds that the testimony of the three physicians fails to meet New York's legal standard for establishing that the decedent was suffering from dementia or Alzheimer's disease which affected his ability to execute the Note on March 15, 2003, or to timely respond to the complaint filed on May 5, 2008. Plaintiff also asserts that the decedent's public activities and appearances in 2005, 2006, 2007 and 2008, and his business transactions with an investor in 2004 and 2007, show that he was not mentally impaired in 2003 or 2008.
As a general rule, a defendant seeking to vacate his default in answering, must demonstrate a reasonable excuse for the default, and the existence of a meritorious defense.
Here, defendant has submitted the deposition testimony of three physicians: Dr. Harrison Mitchell, a specialist in internal medicine; Dr. Carolyn Britton, board certified in internal medicine and neurology; and Dr. Steven Simring board certified in psychiatry. Dr. Britton testified that she is an associate professor of clinical neurology at Columbia University, has a clinical practice and engages in clinical research. In her general practice she sees patients with a variety of disorders including dementia, which is one of her subspecialities. Dr. Britton described Alzheimer's as
Dr. Britton testified she first saw Mr. Sutton on May 2, 2003 when he was 82 years old at which time she did a general examination and neurologic assessment. Based on her clinical findings, Dr. Britton diagnosed him with dementia, and although a diagnosis of Alzheimer's was not confirmed; in view of his family history of dementia, she prescribed the drug Aricept to slow the progression of the disease. When Dr. Britton saw Mr. Sutton in 2007, he had "a dramatic decline . . . was very tangential, very poor recent memory, after three minutes and couldn't stay on topic." She confirmed the diagnosis of Alzheimer's and in October of 2007 after he had surgery and he came out of the hospital, Dr. Britton found him "much much worse . . . and rated him severe in terms of dementia." While Dr. Britton was unable to give an opinion as to whether Mr. Sutton could have entered into a contract in March, 2003, she did state that "from 2002," complex concepts may have been difficult for him, and that in late 2007 his severe dementia, his inability to stay on topic, and his poor recent and remote memories, would have impacted on his daily functioning.
Dr. Mitchell testified that he is in private practice and the medical director of St. Mary's Center, Inc., which is located at 526 West 126
Dr. Steven Simring testified that he is a clinical associate professor of psychiatry at Columbia University, is in private practice, and has seen numerous patients with cognitive disorders, including Alzheimer's. Dr. Simring examined Mr. Sutton on two occasions, in his apartment on September 17, 2009 when he was 88 years old, and two months later on November 5, 2009, when he was in St. Luke's Hospital. Dr. Simring was of the opinion that Mr. Sutton suffered from dementia of the Alzheimer's type, that is Alzheimer's disease. He stated that this was a "clinical diagnosis," that the only way to ascertain if a person has Alzheimer's is by an autopsy of the brain after death to determine if there are pathological changes such "as deposits of amyloid, neurofibrillary tangles and plaques." Dr. Simring explained that "Alzheimer's doesn't develop all of a sudden. It is a slowly progressive illness. Usually there is a 7 to 10-year period of time between the onset of Alzheimer's and death." Dr. Simring opined that Mr. Sutton had severe Alzheimer's when he saw him in 2009; that he would have had severe to moderately severe Alzheimer's in 2008; and that in 2008 he would not have been able to comprehend simple documents, and certainly not a legal document. Dr. Simring further stated that Mr. Sutton had Alzheimer's in 2003 and that Dr. Britton's diagnosis was based on earlier stages of the disease. When asked if Mr. Sutton was capable of understanding the Note in 2003, Dr. Simring stated that although he could not give a definitive conclusion, as the Note was complex, Mr. Sutton's comprehension of the document would have been limited by the onset of Alzheimer's disease.
Based on the foregoing testimony of three physicians, defendant has provided adequate proof that decedent suffered from a mental disability at the time that the action was commenced so as to provide a reasonable excuse for his failure to answer the complaint.
Defendant has also demonstrated the existence of a potentially meritorious defense with respect to the genuineness of Mr. Sutton's signature on the Note, based on a report certified by Dennis Ryan, who is identified therein as a "Forensic Document Examiner." In his report, Mr. Ryan states that he compared the signature on a copy of the Note with 38 checks bearing Mr. Sutton's signature, and that "there is evidence to suggest or indications that Percy Sutton may not have signed the Q-1 [the Note] Acknowledgment and Promise to Pay . . . and that examination of the original may yield a more definitive conclusion.
In opposing the motion, plaintiff argues that defendant's medical evidence is insufficient to satisfy the standards used by New York courts to establish mental incapacity. The cases plaintiff cites, however, involve motions for summary judgment. As noted above, the quantum of proof needed to succeed on a CPLR 5015(a)(1) motion is not as great as the proof needed to succeed in opposing a summary judgment motion.
Thus, under the circumstances presented, where plaintiff does not allege any demonstrable prejudice,
Accordingly, it is
ORDERED that defendant's motion to vacate the default judgment is granted, and the judgment entered on February 17, 2009 is hereby vacated; and it is further
ORDERED that the defendant shall serve and file an answer within twenty days of the date of this decision and order; and it is further
ORDERED that defendant shall forthwith serve a copy of this decision and order with notice of entry on the Clerk of Trial Support, Room 158, 60 Centre Street, and upon such service the Clerk shall restore this matter to the Part 11 preliminary conference calendar for February 16, 2012 at 9:30 a.m.; and it is further
ORDERED that the parties shall appear for a preliminary conference on February 16, 2012 at 9:30 am, in Part 11, Room 351, 60 Centre Street, New York, New York.
The court is notifying the parties by mailing copies of this decision and order.