Opinion
2019–03413 Index No. 716027/17
07-01-2020
George KONSTANTAKOPOULOS, et al., Respondents, v. Karine KARAKASH, et al., Appellants.
Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Jordan E. Trager of counsel), for appellants. Sipsas, P.C., Astoria, N.Y. (John P. Sipsas of counsel), for respondents.
Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Jordan E. Trager of counsel), for appellants.
Sipsas, P.C., Astoria, N.Y. (John P. Sipsas of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.
DECISION & ORDER ORDERED that the order entered January 15, 2019, is affirmed, with costs.
In 2017, the plaintiffs commenced this action against the defendants to recover damages for breach of contract and unjust enrichment. In an order dated November 7, 2018, the Supreme Court granted the plaintiffs' unopposed motion for summary judgment on the complaint.
Thereafter, the defendants moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated November 7, 2018, granting the plaintiffs' unopposed motion, and thereupon to deny that motion and restore the action to the calendar. The Supreme Court denied the defendants' motion, and the defendants appeal.
A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Finamore v. David Ullman, P.C. , 179 A.D.3d 642, 643, 116 N.Y.S.3d 357 ; Ki Tae Kim v. Bishop , 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Flagstar Bank, FSB v. Damaro , 145 A.D.3d 858, 859–860, 44 N.Y.S.3d 128 ; Credit Bur. of N.Y., Inc. v. Rapid Realty 95, Inc. , 137 A.D.3d 841, 25 N.Y.S.3d 903 ). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where that claim is supported by a detailed and credible explanation of the default at issue" ( Ki Tae Kim v. Bishop , 156 A.D.3d at 777, 67 N.Y.S.3d 655 ). At the same time, "mere neglect is not a reasonable excuse" ( OneWest Bank, FSB v. Singer , 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ).
Here, the Supreme Court providently exercised its discretion in denying the defendants' motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated November 7, 2018, granting the plaintiffs' unopposed motion for summary judgment on the complaint. The defendants' counsel's affirmation in support of the motion contained conclusory and unsubstantiated allegations of law office failure concerning an ill paralegal (see Ki Tae Kim v. Bishop , 156 A.D.3d at 777, 67 N.Y.S.3d 655 ; OneWest Bank, FSB v. Singer , 153 A.D.3d at 716, 59 N.Y.S.3d 480 ). No other evidence was submitted to corroborate the allegations. Thus, the defendants failed to demonstrate a reasonable excuse for their default (see Ki Tae Kim v. Bishop , 156 A.D.3d at 777, 67 N.Y.S.3d 655 ; OneWest Bank, FSB v. Singer , 153 A.D.3d at 716, 59 N.Y.S.3d 480 ). Since the defendants failed to demonstrate a reasonable excuse for their default, we need not reach the issue of whether they demonstrated a potentially meritorious opposition to the plaintiffs' motion for summary judgment (see Seaman v. New York Univ. , 175 A.D.3d 1578, 1579, 109 N.Y.S.3d 150 ).
SCHEINKMAN, P.J., RIVERA, ROMAN and COHEN, JJ., concur.