Opinion
12-31-2014
Michael A. CERVINI, respondent, v. CISCO GENERAL CONSTRUCTION, INC., appellant.
Gerald P. Gross, Cedarhurst, N.Y. (Elliot B. Pasik of counsel), for appellant. Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), respondent pro se.
Gerald P. Gross, Cedarhurst, N.Y. (Elliot B. Pasik of counsel), for appellant.
Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), respondent pro se.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), entered October 31, 2013, which denied those branches of its motion which were pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court entered March 28, 2013, upon its failure to appear or answer the complaint, and to extend its time to answer the complaint and to have its answer deemed timely served nunc pro tunc. ORDERED that the order is affirmed, with costs.
"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" ( Wells Fargo Bank v. Malave, 107 A.D.3d 880, 880–881, 968 N.Y.S.2d 127 ; see CPLR 5015[a][1] ; Wells Fargo Bank, N.A. v. Hampton, 119 A.D.3d 856, 989 N.Y.S.2d 368 ). "The absence of a reasonable excuse for the default renders it unnecessary to determine whether the [movant] demonstrated the existence of a potentially meritorious defense" ( Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513 ). Moreover, such a motion "is addressed to the sound discretion of the court" ( Needleman v. Tornheim, 106 A.D.3d 707, 708, 964 N.Y.S.2d 231 ; see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 111 A.D.3d 800, 800, 975 N.Y.S.2d 349 ; Jong Il Lee v. En Salto, 107 A.D.3d 950, 950, 969 N.Y.S.2d 87 ).
Here, the defendant failed to demonstrate a reasonable excuse for its default (see Abdelqader v. Abdelqader, 120 A.D.3d 1275, 993 N.Y.S.2d 71 ; Cavalry SPV I, LLC v. Frenkel, 119 A.D.3d 724, 989 N.Y.S.2d 344 ; Chase Home Fin., LLC v. Minott, 115 A.D.3d 634, 981 N.Y.S.2d 757 ; Kim v. S & M Caterers, Inc., 112 A.D.3d 581, 975 N.Y.S.2d 903 ). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Abdelqader v. Abdelqader, 120 A.D.3d at 1275, 993 N.Y.S.2d 71 ; Cavalry SPV I, LLC v. Frenkel, 119 A.D.3d at 724, 989 N.Y.S.2d 344 ). Accordingly, the Supreme Court providently exercised its discretion in denying those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate the judgment and to extend its time to answer the complaint and have its answer deemed timely served nunc pro tunc.
In light of our determination, we need not consider the defendant's remaining contentions.