Opinion
2021–00401 Index No. 601774/20
09-14-2022
KAMIL EL–DEIRY & ASSOCIATES CPA, PLLC, respondent, v. EXCELLENT HOME CARE SERVICES, LLC, appellant.
Barry R. Feerst (Law Office of Abigail Shvartsman, P.C., Brooklyn, NY, of counsel), for appellant. Forchelli Deegan Terrana, LLP, Uniondale, NY (Raymond A. Castronovo of counsel), for respondent.
Barry R. Feerst (Law Office of Abigail Shvartsman, P.C., Brooklyn, NY, of counsel), for appellant.
Forchelli Deegan Terrana, LLP, Uniondale, NY (Raymond A. Castronovo of counsel), for respondent.
COLLEEN D. DUFFY, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated December 14, 2020. The order denied the defendant's motion pursuant to CPLR 5015(a)(1) and 2005 to vacate a judgment of the same court entered July 31, 2020, upon its default in appearing or answering the complaint.
ORDERED that the order is affirmed, with costs.
In January 2020, the plaintiff commenced this action, inter alia, to recover damages for breach of contract alleging that it had performed certain accounting services for the defendant for which the defendant failed to pay. The defendant failed to appear or answer the complaint. On July 31, 2020, a judgment was entered upon the defendant's default, in favor of the plaintiff and against the defendant in the total sum of $109,619.09. Thereafter, the defendant moved pursuant to CPLR 5015(a)(1) and 2005 to vacate the judgment. In an order dated December 14, 2020, the Supreme Court denied the defendant's motion, and the defendant appeals.
The defendant's motion pursuant to CPLR 5015(a)(1) and 2005 to vacate the judgment was properly denied, albeit on a different ground than that relied upon by the Supreme Court. Although the court determined that a request for judicial intervention filed by the defendant failed to comply with 22 NYCRR 202.70(d), it should not have denied the motion on that ground, as that ground was not raised by the parties, and the defendant had no opportunity to address the issue (see Nationstar Mtge., LLC v. Einhorn, 185 A.D.3d 945, 945, 128 N.Y.S.3d 534 ; Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 54, 984 N.Y.S.2d 401 ). However, since the parties litigated the merits of the motion in the Supreme Court and fully briefed those issues to this Court, we consider the merits of the motion in the interest of judicial economy, rather than remitting the matter to the Supreme Court for it to do so (see Deutsche Bank Natl. Trust Co. v. Gambino, 153 A.D.3d 1232, 1234, 61 N.Y.S.3d 299 ; Town of Brookhaven v. MMCCAS Holdings, Inc., 137 A.D.3d 1258, 1258–1259, 29 N.Y.S.3d 389 ).
In order to obtain relief from a default judgment pursuant to CPLR 5015(a)(1), a defendant must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Emigrant Sav. Bank v. Burke, 199 A.D.3d 652, 652, 153 N.Y.S.3d 885 ; Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d 784, 785, 150 N.Y.S.3d 600 ). Although a court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default, conclusory and unsubstantiated allegations of law office failure are insufficient to constitute a reasonable excuse (see CPLR 2005 ; U.S. Bank, N.A. v. Imtiaz, 198 A.D.3d 1005, 1007, 155 N.Y.S.3d 590 ; Hudson City Sav. Bank v. Augustin, 191 A.D.3d 774, 775, 142 N.Y.S.3d 89 ). "[M]ere neglect is not a reasonable excuse" ( Hudson City Sav. Bank v. Augustin, 191 A.D.3d at 775, 142 N.Y.S.3d 89 [internal quotation marks omitted]). Here, the defendant failed to demonstrate a reasonable excuse for its default. Its conclusory and unsubstantiated claim of law office failure does not establish a reasonable excuse for its default (see e.g. id. ; U.S. Bank N.A. v. Barr, 139 A.D.3d 937, 937–938, 30 N.Y.S.3d 576 ).
Since the defendant failed to establish a reasonable excuse, it is not necessary to determine whether it demonstrated the existence of a potentially meritorious defense (see Bank of N.Y. Mellon Trust Co. N.A. v. Hsu, 204 A.D.3d 874, 167 N.Y.S.3d 129 ; Best Modular Structures, Sets & Servs., LLC v. Flynn, 188 A.D.3d 1130, 1132, 132 N.Y.S.3d 856 ).
The parties' remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.
Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(1) and 2005 to vacate the judgment.
DUFFY, J.P., BRATHWAITE NELSON, IANNACCI and WOOTEN, JJ., concur.