Opinion
2016–05116 Index No. 70745/15
11-07-2018
SHARESTATES INVESTMENT, LLC, Respondent, v. Anyekache HERCULES, et al., Appellants.
Gunilla Perez–Faringer, White Plains, NY, for appellants. Butler, Fitzgerald, Fiveson & McCarthy, New York, N.Y. (David K. Fiveson and Claudia G. Jaffe of counsel), for respondent.
Gunilla Perez–Faringer, White Plains, NY, for appellants.
Butler, Fitzgerald, Fiveson & McCarthy, New York, N.Y. (David K. Fiveson and Claudia G. Jaffe of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to impose an equitable lien upon real property, the defendants appeal from a judgment of the Supreme Court, Westchester County (Mary H. Smith, J.), dated May 9, 2016. The judgment, upon an order of the same court (Terry Jane Ruderman, J.) dated April 14, 2016, granting the plaintiff's motion for leave to enter a default judgment, is in favor of the plaintiff and against the defendants, imposing an equitable lien in the principal sum of $1,500,000 upon the subject real property.
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action alleging that the defendant Anyekache Hercules defrauded it into making a substantial loan to finance a fictitious real estate transaction, and that the defendants then used the loan proceeds to purchase a residence for themselves. The complaint sought to impose an equitable lien in the amount of the loan upon the real property acquired by the defendants. When the defendants failed to timely appear or answer, the plaintiff moved for leave to enter a default judgment, submitting proof of service of the summons and complaint as well as bank records and documentary evidence. The Supreme Court granted the motion, and a judgment subsequently was entered in favor of the plaintiff. The defendants appeal. We affirm.
To successfully oppose a motion for leave to enter a default judgment based on failure to appear or timely serve an answer, the defendants were required to demonstrate a reasonable excuse for their delay and the existence of a potentially meritorious defense to the action (see Gomez v. Gomez–Trimarchi, 137 A.D.3d 972, 973, 27 N.Y.S.3d 229 ; Blake v. United States of Am., 109 A.D.3d 504, 505, 970 N.Y.S.2d 465 ; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 941 N.Y.S.2d 679 ; HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 566–567, 914 N.Y.S.2d 647 ). The determination of whether a reasonable excuse has been established is a matter addressed to the broad discretion of the trial court based upon the circumstances of the particular case (see Yuxi Li v. Caruso, 161 A.D.3d 1132, 1133–1134, 77 N.Y.S.3d 685 ; Matter of Haberman v. Zoning Bd. of Appeals of the City of Long Beach, 152 A.D.3d 683, 684, 58 N.Y.S.3d 585 ; Duprat v. BMW Fin. Servs., NA, LLC, 142 A.D.3d 946, 947, 38 N.Y.S.3d 32 ; Gershman v. Ahmad, 131 A.D.3d 1104, 1105, 16 N.Y.S.3d 836 ).
Here, the conclusory and unsubstantiated assertions proffered by the defendants failed to establish a reasonable excuse for their default (see generally Martorella v. 150 Centerville Holding, LLC, 133 A.D.3d 832, 833, 19 N.Y.S.3d 433 ; HSBC Bank USA, N.A. v. Rotimi, 121 A.D.3d 855, 855–856, 995 N.Y.S.2d 81 ; Vujanic v. Petrovic, 103 A.D.3d 791, 792, 961 N.Y.S.2d 210 ). In any event, the defendants failed to make the requisite showing of a potentially meritorious defense to the action, since their opposition papers did not address the merits of the plaintiff's claim (see Martorella v. 150 Centerville Holding, LLC, 133 A.D.3d at 833, 19 N.Y.S.3d 433 ; Vujanic v. Petrovic, 103 A.D.3d at 792, 961 N.Y.S.2d 210 ).
The defendants' remaining contentions are improperly raised for the first time on appeal (see Bank of N.Y. Mellon Trust Co., N.A. v. Sukhu, 163 A.D.3d 748, 83 N.Y.S.3d 70 ; Matter of Burrell v. West, 163 A.D.3d 660, 81 N.Y.S.3d 433 ; Warren v. Carreras, 133 A.D.3d 592, 594, 19 N.Y.S.3d 309 ; Barouh v. Law Offs. of Jason L. Abelove, 131 A.D.3d 992, 993, 16 N.Y.S.3d 294 ).
Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion for leave to enter a default judgment against the defendants.
MASTRO, J.P., SGROI, MALTESE and BRATHWAITE NELSON, JJ., concur.