Opinion
2014-01-15
Sarr ABDOURAHAMANE, respondent, v. PUBLIC STORAGE INSTITUTIONAL FUND III, etc., appellant.
Cullen and Dykman, LLP, New York, N.Y. (Elisa Pugliese and Joseph Miller of counsel), for appellant. The Ottley Law Firm, P.C., Brooklyn, N.Y. (Roland G. Ottley of counsel), for respondent.
Cullen and Dykman, LLP, New York, N.Y. (Elisa Pugliese and Joseph Miller of counsel), for appellant. The Ottley Law Firm, P.C., Brooklyn, N.Y. (Roland G. Ottley of counsel), for respondent.
In an action, inter alia, to recover damages for fraud and a violation of General Business Law § 349, the defendant appeals from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated November 7, 2012, as granted that branch of the plaintiff's motion which was pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated July 18, 2012, granting the defendant's motion pursuant to CPLR 3211(a)(7) and 3016(b) to dismiss the first, second, third, and fourth causes of action upon the plaintiff's default and, thereupon, denied the defendant's motion.
ORDERED that the order dated November 7, 2012, is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was to vacate the order dated July 18, 2012, is denied
Under the circumstances of this case, the Supreme Court erred in granting that branch of the plaintiff's motion which was pursuant to CPLR 5015(a)(1) to vacate an order dated July 18, 2012, granting the defendant's motion pursuant to CPLR 3211(a)(7) and 3016(b) to dismiss the first, second, third, and fourth causes of action upon the plaintiff's default and, thereupon, denying the defendant's motion. A plaintiff seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action ( see CPLR 5015[a] [1]; Bistre v. Rongrant Assoc., 109 A.D.3d 778, 778, 971 N.Y.S.2d 143; Sussman v. Jo–Sta Realty Corp., 99 A.D.3d 787, 788, 951 N.Y.S.2d 683). Here, while the defendant does not challenge the Supreme Court's implicit finding that the plaintiff demonstrated a reasonable excuse for his default, the defendant correctly contends that the plaintiff failed to demonstrate that the first, second, third, or fourth causes of action were potentially meritorious. In fact, the allegations in the complaint failed to state a cause of action sounding in fraud (the second cause of action) ( see Karsanow v. Kuehlewein, 232 A.D.2d 458, 458, 648 N.Y.S.2d 465; Zanani v. Savad, 217 A.D.2d 696, 697, 630 N.Y.S.2d 89) or fraudulent concealment (the first cause of action) ( see Kevin Kerveng Tung, P.C. v. JP Morgan Chase & Co., 105 A.D.3d 709, 711, 963 N.Y.S.2d 145; Consolidated Bus Tr., Inc. v. Treiber Group, LLC, 97 A.D.3d 778, 779, 948 N.Y.S.2d 679; High Tides, LLC v. DeMichele, 88 A.D.3d 954, 957, 931 N.Y.S.2d 377), based on a violation of General Business Law § 349 (the third cause of action) ( see Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc., 98 A.D.3d 663, 664–665, 950 N.Y.S.2d 151; Canario v. Gunn, 300 A.D.2d 332, 333, 751 N.Y.S.2d 310), or for an attorney's fee under General Business Law § 349(h) (the fourth cause of action) ( cf. Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 167–168, 893 N.Y.S.2d 208). RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur.