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



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
