Opinion
No. 2023-51244 No. 2023-45 K C
10-06-2023
1312 Coney Island, LLC, Appellant, v. Maleeka Spragion, Respondent.
1312 Coney Island, LLC, appellant pro se. Maleeka Spragion, respondent pro se (no brief filed).
Unpublished Opinion
1312 Coney Island, LLC, appellant pro se.
Maleeka Spragion, respondent pro se (no brief filed).
PRESENT:: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated September 16, 2022. The order denied plaintiff's motion to, in effect, open its default in appearing for trial.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this commercial claims action in May 2021 to recover unpaid rent. Plaintiff failed to appear on an adjourned trial date and, by order entered June 23, 2022, the Civil Court dismissed the action. In August 2022, plaintiff moved to, in effect, open its default, asserting, among other things, that its agent was ill on the adjourned trial date. By order dated September 16, 2022, the Civil Court denied plaintiff's motion.
To be relieved of its default pursuant to CPLR 5015 (a) (1), plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]; Rapo v Litvinoff, 72 Misc.3d 138 [A], 2021 NY Slip Op 50769[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). The determination of what constitutes a reasonable excuse sufficient to open a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 A.D.2d 494 [2000]; see also Harcztark v Drive Variety, Inc., 21 A.D.3d 876 [2005]). Here, the Civil Court did not improvidently exercise its discretion in finding that plaintiff had failed to demonstrate a reasonable excuse for its default, as plaintiff provided no documentation to substantiate its claim that its agent was ill on the court date in question (see e.g. Matter of Giselle H.G. [Vanessa G.], 176 A.D.3d 510, 511 [2019]; Guerre v Trustees of Columbia Univ. in City of NY, 300 A.D.2d 29 [2002]; Joseph v Neverson, 69 Misc.3d 126 [A], 2020 NY Slip Op 51113[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Hawthorne Gardens Owners Corp. v Jacobs, 47 Misc.3d 148 [A], 2015 NY Slip Op 50822[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). In light of this conclusion, we do not consider whether plaintiff sufficiently demonstrated the existence of a meritorious cause of action (see Tlais v Cinozgumes, 189 A.D.3d 1293, 1294 [2020]; Lane v Smith, 84 A.D.3d 746, 748 [2011]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.