Opinion
11845 Index 656755/16
07-16-2020
JANSONS ASSOCIATED INC., Plaintiff–Respondent, v. 12 E. 72ND LLC, et al., Defendants–Appellants, Steven Croman, Defendant.
Rose & Rose, New York (Dean Dreiblatt of counsel), for appellants.
Rose & Rose, New York (Dean Dreiblatt of counsel), for appellants.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Oing, Singh, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 13, 2018, which, insofar as appealed from as limited by the briefs, denied the cross motion of defendants 12 E. 72nd LLC (Owner) and Merrick Real Estate Group, Inc. (Merrick) to vacate their default in appearing and answering the complaint, unanimously affirmed, with costs.
The motion court providently exercised its discretion when it determined that Owner and Merrick failed to articulate a reasonable excuse for their default under CPLR 5015(a)(1) (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ; Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413–414, 914 N.Y.S.2d 130 [1st Dept. 2011] ). Merrick admits that it received a timely copy of the complaint in January 2017, and provides no basis for its assumption that Owner would defend against the action on its behalf (see D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 90 A.D.3d 403, 405, 934 N.Y.S.2d 19 [1st Dept. 2011] ). Moreover, Owner's unspecified problems with mail and its member's bare denial of receipt of the complaint do not constitute a reasonable excuse (see e.g. State Farm Mut. Auto. Ins. Co. v. Dr. Ibrahim Fatiha Chiropractic, P.C., 147 A.D.3d 696, 697, 48 N.Y.S.3d 133 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468599 [2017] ).
Owner and Merrick also failed to establish that they did not receive notice of the summons in time to defend against the action under CPLR 317 (see Eugene Di Lorenzo, Inc., 67 N.Y.2d at 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 ).
In view of the foregoing, we need not reach the issue of whether a meritorious defense was set forth (see Cusumano v. Riley Land Surveyors, LLP, 179 A.D.3d 593, 594, 118 N.Y.S.3d 94 [1st Dept. 2020] ; M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 532, 871 N.Y.S.2d 131 [1st Dept. 2009] ).