Opinion
2015-03919, Index No. 22841/12.
04-27-2016
Dmitry SKUTELSKY, appellant, v. JN NATURAL FRUIT CORP., respondent.
Tsyngauz & Associates, P.C., New York, N.Y. (Roman Kopelevich and Simon I. Malinowski of counsel), for appellant. Michael E. Pressman, New York, N.Y. (Stuart B. Cholewa of counsel), for respondent.
Tsyngauz & Associates, P.C., New York, N.Y. (Roman Kopelevich and Simon I. Malinowski of counsel), for appellant.
Michael E. Pressman, New York, N.Y. (Stuart B. Cholewa of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated March 5, 2015, as granted that branch of the motion of the defendant which was pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court dated October 22, 2014, in favor of the plaintiff and against the defendant in the total sum of $280,885.20, entered upon the defendant's failure to appear in the action.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate the judgment dated October 22, 2014, in favor of the plaintiff and against the defendant in the total sum of $280,885.20, entered upon the defendant's failure to appear in the action, is denied.
A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for its delay in appearing and a potentially meritorious defense to the action (see Toll Bros., Inc. v. Dorsch, 91 A.D.3d 755, 936 N.Y.S.2d 576 ; Dimitriadis v. Visiting Nurse Serv. of N.Y., 84 A.D.3d 1150, 923 N.Y.S.2d 691 ; Katz v. Marra, 74 A.D.3d 888, 890, 905 N.Y.S.2d 204 ). Although there exists a strong public policy which favors the disposition of matters on their merits (see Gerdes v. Canales, 74 A.D.3d 1017, 903 N.Y.S.2d 499 ; Bunch v. Dollar Budget, Inc., 12 A.D.3d 391, 783 N.Y.S.2d 829 ), the decision as to whether or not to set aside a default is generally left to the sound discretion of the trial court (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ; U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1168, 912 N.Y.S.2d 285 ; Hegarty v. Ballee, 18 A.D.3d 706, 795 N.Y.S.2d 747 ). The court “should also consider potential prejudice to the opposing party, whether the default was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the public policy of resolving actions on their merits” (Needleman v. Tornheim, 106 A.D.3d 707, 708, 964 N.Y.S.2d 231 ; see Toll Bros., Inc. v. Dorsch, 91 A.D.3d at 755–756, 936 N.Y.S.2d 576 ).
Here, the defendant's proffered excuse that its default in appearing was due to the plaintiff's failure to serve a complaint after a demand was made by the defendant's insurance carrier was unsubstantiated, conclusory, and inadequately explained, and, therefore, did not constitute a reasonable excuse for the default (see Wells Fargo Bank, N.A. v. Krauss, 128 A.D.3d 813, 814, 10 N.Y.S.3d 257 ). Moreover, the record demonstrates a pattern of willful default and neglect by this defendant over a period of almost two years, during which it was served with numerous legal notices relating to the action which were ignored. Under the circumstances the Supreme Court improvidently exercised its discretion in excusing the defendant's default and in vacating the judgment entered upon its default (see Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66 ).
In view of the lack of a reasonable excuse, it was unnecessary for the Supreme Court to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227 ; Centennial El. Indus., Inc. v. Ninety–Five Madison Corp., 90 A.D.3d 689, 690, 934 N.Y.S.2d 483 ; O'Donnell v. Frangakis,