State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 5, 2015 518182 

________________________________

In the Matter of the Estate

of GLADYS JOHNSON MOAK, 

Deceased.

JOHN DOE/JANE DOE, as Executor

of the Estate of GLADYS

JOHNSON MOAK, Deceased,

Respondent; MEMORANDUM AND ORDER

JAMES R. MOAK,

Respondent,

and

RALPH H. DRAKE et al.,

Appellants.

________________________________

Calendar Date: January 16, 2015

Before: Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Waite & Associates, PC, Albany (Stephen J. Waite of

counsel), for appellants.

James R. Moak, Delmar, respondent pro se.

__________

Egan Jr., J.

Appeal from an order of the Surrogate's Court of Albany

County (Doyle, S.), entered February 15, 2013, which, upon

remittal, among other things, denied certain respondents' motion

for a default judgment.
-2- 518182 

The underlying facts are set forth in detail in our prior

decision in this matter (92 AD3d 1040 [2012], lv denied 19 NY3d

812 [2012]). To summarize, in 1994, respondent Woodfield

Development Corporation, then owned in equal shares by respondent

Ralph H. Drake and another, acquired certain real property in

Saratoga County with the intention of subdividing the land and

constructing residential housing thereon. Respondent RHD

Construction Corporation, an excavation company owned solely by

Drake, was to prepare the site, and Drake's business partner was

to build the actual residences. When Drake and Woodfield began

to experience financial difficulties, Drake sought additional

investors. Respondent James R. Moak (hereinafter Moak), a

builder with financial difficulties of his own, and Drake

subsequently reached an agreement whereby Moak would purchase

lots in the subdivision and would undertake construction of the 

homes. Drake then bought out his business partner and became the

sole owner of Woodfield.

When Drake's and Moak's respective financial difficulties

persisted, Drake approached Moak and inquired as to whether Moak

would be willing to borrow money from his father, respondent

Roger J. Moak (apparently now deceased), and his stepmother,

Gladys Johnson Moak (hereinafter decedent). Those efforts were

successful and, in September 1995, a check from decedent in the

amount of $110,000 was deposited into an escrow account

maintained by Moak's attorney; shortly thereafter, three

additional checks in the amounts of $45,000, $30,000 and $17,000

were deposited into RHD's checking account – followed by an

additional $9,000 check deposited into RHD's account in a similar

fashion in October 1995. Each of the foregoing deposits was

recorded as "Notes Payable–Officer" in RHD's cash receipts

journal. Thereafter, in January 1996 and April 1996, decedent

wrote two checks payable directly to RHD in the amounts of

$25,000 (bearing the notation "LOAN WOODFIELD") and $36,000

(bearing the notation "WOODFIELD"), respectively, which were

deposited into RHD's bank account. All told, $162,000 of

decedent's funds were deposited into one or more bank accounts

maintained by RHD.

Despite insisting that none of the foregoing tenders

constituted a loan from decedent to either himself or any of his
-3- 518182 

corporate entities, Drake thereafter wrote four checks from RHD's

account to decedent in the aggregate sum of $147,745.73. Three

of the four checks issued by Drake bore a notation evidencing the

existence of a loan or repayment of a debt to decedent; of these

tenders, only the final check – for $1,500 – ultimately cleared. 

Following decedent's death, petitioner commenced this proceeding

in 2000 alleging, among other things, that the moneys advanced by

decedent constituted a loan that Drake, RHD and Woodfield

(hereinafter collectively referred to as respondents) thereafter

failed to repay. Respondents answered and cross-claimed against

Moak in 2001 for contribution and/or indemnification – to which

Moak apparently did not reply. Thereafter, in 2003, Moak

executed and filed a confession of judgment acknowledging his

indebtedness to decedent's estate.

On the first day of trial, respondents moved for a default

judgment against Moak, which Surrogate's Court did not address. 

Moak appeared and testified on the second day of trial and, at

the conclusion thereof, Surrogate's Court partially granted

petitioner's application and ordered Drake to reimburse

decedent's estate in the amount of $160,500, together with

interest thereon. Upon appeal, we affirmed the underlying

decree, but we remitted this matter to Surrogate's Court to

address respondents' motion for a default judgment, as well as

the merits of their cross claim against Moak for contribution

and/or indemnification (92 AD3d at 1045). Thereafter,

Surrogate's Court denied respondents' motion for a default

judgment and denied, on the merits, respondents' cross claim

against Moak. This appeal by respondents ensued.

We affirm. Initially, we cannot say that Surrogate's Court

abused its discretion in denying respondents' motion for a

default judgment. SCPA 203 provides, in pertinent part, that

"[p]ersonal jurisdiction of parties is obtained by service of

process upon the parties or by submission to the jurisdiction of

the court by waiver of issuance and service of process,

appearance of an adult competent party in person or by attorney

or by pleading." Similarly, SCPA 401 (2) provides, insofar as is

relevant here, that "[a]n appearance is made by pleading . . . or

by appearance in person noted upon the record in open court."
-4- 518182 

Here, although Moak indeed was not present on the first day

of trial (April 7, 2009), he appeared and testified the following

day and, prior thereto, had filed a confession of judgment

acknowledging his indebtedness to decedent's estate. The

confession of judgment, in turn, made express reference to the

fact that the funds in question were transferred at the behest

of, among others, respondents in connection with the Woodfield

subdivision and, further, noted that if any portion of the total

indebtedness ultimately was repaid by respondents, such sum would

constitute a credit against the underlying judgment. As the

confession of judgment was entered in compliance with the

provisions of CPLR 3218 (a) and, among other things, expressly

referenced the underlying loan transactions and asserted the

right to a credit for any sums ultimately repaid by respondents,

such document may be deemed a pleading for purposes of

constituting an appearance by Moak within the meaning of SCPA 203

and 401 (see generally Matter of Katz, 81 AD2d 145, 148 [1981],

affd 55 NY2d 904 [1982] [letter addressing the merits of the

action and requesting affirmative relief from the court may

constitute an informal answer]) – particularly in view of the

fact that Moak never contested the court's jurisdiction over him

(compare Matter of Katz, 81 AD2d at 148-149). Accordingly,

respondents' motion for a default judgment was properly denied.

As for the denial of respondents' cross claim, suffice it

to say that Drake and Moak offered vastly different accounts of

their working relationship, the responsibilities assumed by

respondents and Moak with respect to the planned subdivision, the

manner in which decedent's moneys came to be deposited into RHD's

account, the manner in which, to whom and under whose authority

such moneys thereafter were disbursed and, as between respondents

and Moak, who ultimately derived a benefit from such funds. As

we noted when this matter was last before us, Surrogate's Court

discounted Drake's version of both his relationship with Moak and

the subject transactions, and we again discern no basis upon

which to disturb that credibility determination. We also are

satisfied, based upon our review of Moak's testimony and the

relevant documentary evidence, that respondents' cross claim was

properly denied. Respondents' remaining arguments, to the extent

not specifically addressed, have been examined and found to be

lacking in merit.
-5- 518182 

Lahtinen, J.P., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court