Opinion
2007-1545 K C.
Decided November 5, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Chan, J.), entered September 10, 2007. The order denied plaintiff's motion to vacate a default judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Plaintiff commenced this action against her home improvement contractor for breach of contract. Issue was joined in February 2005 when defendant answered and counterclaimed to recover the balance due under the contract. After plaintiff failed to appear on numerous adjourned dates, an inquest was held, in September 2005, at which plaintiff again did not appear. Following the inquest, the complaint was dismissed without prejudice and defendant was found to be entitled to the principal sum of $15,000 on his counterclaim. A default judgment in the sum of $19,268.64 was subsequently entered against plaintiff on August 6, 2007. In September 2007, plaintiff moved to vacate the default judgment and restore the case to the calendar. In support of her motion, plaintiff stated that her reason for not appearing in court was that she was not served with notice of the proceedings until she received the notice informing her of the default judgment. Defendant opposed the motion. By order entered September 10, 2007, the court below denied the motion. The instant appeal by plaintiff ensued.
In seeking to vacate a default judgment, a party must demonstrate both a reasonable excuse for the default and merit ( see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138; Perez v Han Ki Man, 39 AD3d 521). Whether there is a reasonable excuse for a default is a discretionary, sui generis, determination to be made by the court deciding the motion ( see Harcztark v Drive Variety, Inc., 21 AD3d 876). We find that the court below acted well within its discretion when it found that plaintiff did not show a reasonable excuse for her default in September 2005, giving no credence to her assertion that she did not receive any court-forwarded notices. Even if plaintiff had demonstrated a reasonable excuse for her default, we find that she failed to show the merit of her claim or demonstrate that she had a meritorious defense to the counterclaim.
For the first time on appeal, plaintiff contends that the default judgment should not have been entered, and the counterclaim should have been dismissed as abandoned, pursuant to CPLR 3215 (c), because entry of the judgment was sought almost two years after the default. This contention, however, is unpreserved for appellate review ( see Gulf Ins. Co. v Kanen, 13 AD3d 579). In any event, there is no merit to plaintiff's contention, inasmuch as CPLR 3215 (c) simply requires a party "to begin the process of securing a default judgment within one year after the . . . default" (Weinstein-Korn Miller, NY Civ Prac ¶ 3215.00 [2d ed]; see also Siegel, NY Prac § 294, at 479 [4th ed]). Since the inquest took place in the same month as the default, following which an order issued dismissing the complaint without prejudice and awarding defendant the sum of $15,000 on his counterclaim, CPLR 3215 (c) is inapplicable to the facts herein.
Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.33 governs the time period in which judgments must be entered. It provides that proposed orders or judgments must be entered "within 60 days after the signing and filing of the decision directing that the order be settled or submitted." However, in Funk v Barry ( 89 NY2d 364), the Court of Appeals clarified that the 60-day period only applies where the court explicitly directs that the proposed judgment be settled or submitted for signature. The Court noted that "by its language, the 60-day time limitation does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court's signature on a proposed judgment . . . Significantly, the Legislature has chosen not to place a time restriction on the completion of entry" ( id. at 368). Consequently, the 60-day time period does not apply to the instant case involving a determination following an inquest, since the entry of judgment herein was merely ministerial. Plaintiff's remaining contentions lack merit. Accordingly, the order of the court below is affirmed.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.