Opinion
2013-04-24
CEO BUSINESS BROKERS, INC., appellant, v. Fathi ALQABILI, et al., respondents.
Gary E. Rosenberg, P.C., Forest Hills, N.Y., for appellant.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), entered June 26, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court granting the plaintiff's unopposed motion for leave to enter judgment on the issue of liability against the defendants, upon their default in appearing or answering, and, in effect, to deem the defendants' answer timely served.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were pursuant to CPLR 5015(a)(1) to vacate a prior order granting the plaintiff's unopposed motion for leave to enter judgment on the issue of liability against the defendants, and, in effect, to deem the defendants' answer timely served, are denied.
A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action ( seeCPLR 5015[a][1]; Bontempts v. Aude Constr. Corp., 98 A.D.3d 1071, 1072, 951 N.Y.S.2d 561;U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411;Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561). While the defendants may have proffered a reasonable excuse for the initial two-month delay in retaining their current attorney ( see Merchants Ins. Group v. Hudson Val. Fire Protection Co., Inc., 72 A.D.3d 762, 763, 898 N.Y.S.2d 242), the subsequently retained attorney failed to proffer a reasonable excuse for the further four-month delay in moving to vacate the default and for leave to serve a late answer ( seeCPLR 2214; Fenner v. County of Nassau, 80 A.D.3d 555, 556, 914 N.Y.S.2d 653;47 Thames Realty, LLC v. Robinson, 61 A.D.3d 923, 924, 878 N.Y.S.2d 752;Murray v. New York City Health & Hosps. Corp., 52 A.D.3d 792, 794, 861 N.Y.S.2d 372). Although the Supreme Court has the discretion to accept law office failure as a reasonable excuse ( seeCPLR 2005; Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96), the excuse must be supported by detailed allegations of fact explaining the law office failure ( see Matter of Esposito, 57 A.D.3d 894, 895, 870 N.Y.S.2d 109;Gazetten Contr., Inc. v. HCO, Inc., 45 A.D.3d 530, 844 N.Y.S.2d 721). Here, defense counsel's allegation of law office failure was vague, conclusory, unsubstantiated ( see HSBC Bank USA v. Wider, 101 A.D.3d 683, 955 N.Y.S.2d 202;Cantor v. Flores, 94 A.D.3d 936, 937, 943 N.Y.S.2d 138;Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789–790, 921 N.Y.S.2d 643), and unreasonable under the circumstances ( cf. Stolpiec v. Wiener, 100 A.D.2d 931, 932, 474 N.Y.S.2d 820).
In view of the absence of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently demonstrated the existence of a potentially meritorious defense to the action ( see Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d 789, 792, 952 N.Y.S.2d 227;Tribeca Lending Corp. v. Correa, 92 A.D.3d 770, 771, 938 N.Y.S.2d 599;Alterbaum v. Shubert Org., Inc., 80 A.D.3d 635, 636, 914 N.Y.S.2d 681).
Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was to vacate the prior order entered on their default.
The plaintiff's remaining contentions have been rendered academic in light of our determination.