Opinion
2018–02412 Index No. 602947/15
06-05-2019
NEW STREET ASSOCIATES, LLC, Respondent, v. Anthony GACH, et al., Appellants.
Barry R. Feerst, Brooklyn, N.Y. (Yitzchok Kotkes of counsel), for appellants. Litt Law Group, LLC, Rockville Centre, N.Y. (Robert G. Litt and Joseph Aufenanger of counsel), for respondent.
Barry R. Feerst, Brooklyn, N.Y. (Yitzchok Kotkes of counsel), for appellants.
Litt Law Group, LLC, Rockville Centre, N.Y. (Robert G. Litt and Joseph Aufenanger of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
In April 2015, the plaintiff commenced this action, inter alia, to recover damages for breach of a lease. On June 15, 2016, the defendants failed to appear at a compliance conference. By order entered June 16, 2016, the Supreme Court held the defendants in default and directed an inquest on the issue of damages. Thereafter, an inquest was held on the issue of damages, and on October 31, 2016, a judgment was entered in favor of the plaintiff and against the defendants in the total sum of $ 52,595. Subsequently, the defendants cross-moved pursuant to CPLR 5015(a)(1) to vacate the judgment. In the order appealed from, the court, inter alia, denied the defendants' cross motion, and the defendants appeal from that portion of the order.
To vacate their default in appearing at a compliance conference, the defendants were required to demonstrate both a reasonable excuse for their default and a potentially meritorious defense (see CPLR 5015[a][1] ; New York Vein Ctr., LLC v. Dovlaryan, 162 A.D.3d 1056, 1057, 80 N.Y.S.3d 132 ; Addison v. Avshalumov, 153 A.D.3d 477, 478, 59 N.Y.S.3d 746 ; Foley Inc. v. Metropolis Superstructures, Inc., 130 A.D.3d 680, 11 N.Y.S.3d 873 ). "Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court" ( Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854 ; see 555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp., 154 A.D.3d 909, 62 N.Y.S.3d 530 ). Where, as here, a party asserts law office failure as a reasonable excuse, "it must provide a detailed and credible explanation of the default" 555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp., 154 A.D.3d at 910, 62 N.Y.S.3d 530 [internal quotation marks omitted]; see Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 921 N.Y.S.2d 643 ).
Here, the defendants' claim of law office failure was conclusory and unsubstantiated, and, under the circumstances of this case, did not constitute a reasonable excuse for their default (see IndyMac Bank, FSB v. Izzo, 166 A.D.3d 866, 868, 89 N.Y.S.3d 196 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643 ; cf. 555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp., 154 A.D.3d at 910, 62 N.Y.S.3d 530 ). In any event, the defendants failed to demonstrate the existence of a potentially meritorious defense. The affidavit of the principal of the defendant corporations, which contained only conclusory assertions without any evidentiary support, was insufficient to establish a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v. Cean Owens, LLC, 110 A.D.3d 872, 873, 972 N.Y.S.2d 713 ; Garal Wholesalers, Ltd. v. Raven Brands, Inc., 82 A.D.3d 1041, 1042, 919 N.Y.S.2d 358 ).
Accordingly, we agree with the Supreme Court's denial of the defendants' cross motion pursuant to CPLR 5015(a)(1) to vacate the judgment.
RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.