Opinion
519325.
04-30-2015
RUTNIK & CORR CPA'S, P.C., Respondent, v. GUPTILL FARMS, INC., et al., Appellants.
Tobin & Dempf, LLP, Albany (R. Christopher Dempf of counsel), for appellants. Ganje Law Office, Albany (David L. Ganje of counsel), for respondent.
Tobin & Dempf, LLP, Albany (R. Christopher Dempf of counsel), for appellants.
Ganje Law Office, Albany (David L. Ganje of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., LYNCH and CLARK, JJ.
Opinion
EGAN JR., J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered April 8, 2014 in Saratoga County, which, among other things, denied defendants' motion to vacate a default judgment entered against them.
In March 2006, plaintiff commenced an action for breach of contract against defendants seeking to recover payment for accounting services it had provided defendant Guptill Farms, Inc. between 2001 and 2003. Defendants failed to answer or appear, and plaintiff obtained a default judgment in February 2007. In 2013, plaintiff served a subpoena duces tecum on defendants seeking documents and deposition testimony related to enforcement of the judgment. After defendants failed to comply with the subpoena, plaintiff sought an order holding them in contempt. Defendants thereafter moved to quash the subpoena and to vacate the default judgment. Supreme Court granted the motion to quash the subpoena, but denied the motion to vacate the default judgment. Defendants now appeal.
We affirm. “[A] party seeking to vacate a default judgment must demonstrate a reasonable excuse for default and a meritorious defense [and t]he determination of whether to vacate a default judgment is within the discretion of the trial court” (Capital Compost & Waste Reduction Servs., LLC v. MacDonald, 73 A.D.3d 1311, 1312, 900 N.Y.S.2d 790 [2010] [internal quotation marks and citations omitted]; see CPLR 5015[a][1] ; Wadsworth v. Sweet, 106 A.D.3d 1433, 1434, 966 N.Y.S.2d 584 [2013] ). We reject defendants' proffered excuse that they were not properly served a copy of the summons and complaint inasmuch as service upon defendant William Guptill, the president of Guptill Farms, was sufficient to effect service on both himself individually and Guptill Farms (see CPLR 311[a][1] ; Matter of Stony Cr. Preserve, Inc., 121 A.D.3d 1376, 1377, 995 N.Y.S.2d 346 [2014] ; Port Chester Elec. Co. v. Ronbed Corp., 28 A.D.2d 1008, 1008, 284 N.Y.S.2d 9 [1967] ). Further, even assuming that a receiver appointed in a mortgage foreclosure action against defendants in Maine was charged with defending plaintiff's claim against them, defendants had full knowledge of the claim and have not presented any evidence that they made any inquiries regarding the status of the litigation for over seven years. In our view, defendants' conduct amounted to a “serious lack of concerned attention to the progress of the action” (Lauro v. Cronin, 184 A.D.2d 837, 839, 584 N.Y.S.2d 671 [1992] ; see Fishman v. Beach, 246 A.D.2d 779, 780, 668 N.Y.S.2d 75 [1998] ). Accordingly, we agree with Supreme Court that defendants failed to offer a reasonable excuse for their default and discern no abuse of its discretion in denying defendants' motion to vacate the default judgment (see Wood v. Tuttle, 106 A.D.3d 1393, 1394, 968 N.Y.S.2d 613 [2013] ; Fishman v. Beach, 246 A.D.2d at 780–781, 668 N.Y.S.2d 75 ). Given the lack of a reasonable excuse, we need not address whether defendants had a meritorious defense (see Cotter v. Dukharan, 110 A.D.3d 1331, 1333, 973 N.Y.S.2d 494 [2013] ). Finally, by not appearing in the action, defendants were not entitled to notice of plaintiff's application for a default judgment that was made within a year of defendants' default (see CPLR 3215[g][1] ).
ORDERED that the order is affirmed, with costs.
GARRY, J.P., LYNCH and CLARK, JJ., concur.