Opinion
No. 2023-188 K C
11-03-2023
American Opera Musical Theater Co., Inc., Also Known as International Concerts, Respondent, v. RussianHotline.com Inc., Appellant.
Russian Hotline.Com. Inc., appellant pro se. David Wright Tremaine, LLP (Adam I. Rich of counsel), for respondent.
Unpublished Opinion
Russian Hotline.Com. Inc., appellant pro se.
David Wright Tremaine, LLP (Adam I. Rich of counsel), for respondent.
PRESENT: CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered January 12, 2023. The order denied defendant's motion to vacate a judgment of that court entered September 22, 2022 upon defendant's failure to appear or answer the claim.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this small claims action to recover $10,000 for breach of contract. Upon defendant's failure to appear in this action, a default judgment was entered against it on September 22, 2022 in the sum of $10,031.66. In October 2022, defendant moved to vacate the default judgment. The Civil Court denied defendant's motion, finding that defendant had not established a reasonable excuse for failing to appear and had not set forth a potentially meritorious defense.
To prevail on its motion to vacate the judgment based on excusable default, defendant was required to demonstrate that there was a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]; Torres v DeJesus, 197 A.D.3d 1260 [2021]). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such a determination (see Green Apple Mgt. Corp. v Aronis, 55 A.D.3d 669 [2008]). Here, we find no basis to disturb the Civil Court's determination that defendant failed to demonstrate a reasonable excuse for its default in appearing (see CPLR 5015 [a] [1]; Matter of Tony's Towing Serv., Inc. v Swarts, 109 A.D.3d 475, 477 [2013]; Daniels v Coney Mgt., LLC, 63 Misc.3d 133 [A], 2019 NY Slip Op 50429[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Lane v Smith, 84 A.D.3d 746, 748 [2011]).
Accordingly, the order is affirmed.
BUGGS, J.P., MUNDY and HOM, JJ., concur.