Opinion
2013-06-25
BURO HAPPOLD CONSULTING ENGINEERS, PC., Plaintiff–Appellant, v. RMJM, et al., Defendants–Respondents.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Douglas R. Halstrom of counsel), for appellant. Wolff & Samson PC, New York (Bruce D. Ettman of counsel), for respondents.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Douglas R. Halstrom of counsel), for appellant. Wolff & Samson PC, New York (Bruce D. Ettman of counsel), for respondents.
ANDRIAS, J.P., FRIEDMAN, SWEENY, SAXE, RICHTER, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered December 17, 2012, which, in an action for unpaid fees incurred for design services, granted defendants' motion to vacate the default judgment entered against them and reinstated the complaint, unanimously reversed, on the law, without costs, the motion denied, the default judgment reinstated, and the matter remanded for further proceedings.
Defendants (collectively RMJM) failed to set forth a reasonable excuse for the failure to submit a timely answer to the complaint. RMJM's bare and self-serving contention that it was unable to afford counsel, made without any offer of financial proof, is not a reasonable excuse for the default ( see Kanat v. Ochsner, 301 A.D.2d 456, 457–458, 755 N.Y.S.2d 371 [1st Dept. 2003] ). Because RMJM failed to proffer a reasonable excuse for its default, its motion to vacate the judgment must be denied, regardless of whether it demonstrated a potentially meritorious defense ( seeCPLR 5015[a][1]; M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 532, 871 N.Y.S.2d 131 [1st Dept. 2009] ).
As to a meritorious defense, we find that RMJM has failed to proffer one. Plaintiff never agreed to the proposed contract, which would have limited its right to collect fees due to it.