Opinion
Nos. 2022-05251 2023-01689 Index No. 527716/19
08-28-2024
Danister K. Rajaram, appellant, v. Shanta Indradai Singh, etc., respondent.
Mark S. Friedlander, New York, NY, for appellant. Harvey A. Herbert, Brooklyn, NY, for respondent.
Mark S. Friedlander, New York, NY, for appellant.
Harvey A. Herbert, Brooklyn, NY, for respondent.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order and judgment (one paper) of the Supreme Court, Kings County (Richard J. Montelione, J.), dated June 1, 2022, and (2) an order of the same court dated December 19, 2022. The order and judgment, in effect, denied the plaintiff's motion, among other things, pursuant to CPLR 5015(a)(1) to vacate so much of an order of the same court dated May 13, 2021, as granted that branch of the defendant's unopposed motion which was for leave to enter a default judgment against the plaintiff on the defendant's counterclaims, and is in favor of the defendant and against the plaintiff on the defendant's counterclaims. The order dated December 19, 2022, denied the plaintiff's motion, in effect, for leave to reargue his prior motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of the order dated May 13, 2021, as granted that branch of the defendant's unopposed motion which was for leave to enter a default judgment against the plaintiff on the defendant's counterclaims.
ORDERED that the appeal from the order dated December 19, 2022, is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order and judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendant.
In December 2019, the plaintiff commenced this action, alleging that the defendant breached the terms of a stipulation of settlement. The defendant interposed an answer with counterclaims, to which the plaintiff did not reply. Thereafter, the defendant moved, inter alia, for leave to enter a default judgment against the plaintiff on the defendant's counterclaims, and the plaintiff did not oppose the motion. In an order dated May 13, 2021, the Supreme Court, among other things, granted that branch of the defendant's motion. In October 2021, the plaintiff moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of the order dated May 13, 2021, as granted that branch of the defendant's motion which was for leave to enter a default judgment against the plaintiff on the defendant's counterclaims, asserting an excuse of law office failure. In an order and judgment dated June 1, 2022, the court, in effect, denied the plaintiff's motion and awarded the relief sought in the defendant's counterclaims. The plaintiff appeals.
To vacate so much of the order dated May 13, 2021, as granted that branch of the defendant's motion which was for leave to enter a default judgment against the plaintiff on the defendant's counterclaims, "the plaintiff was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition" to that branch of the defendant's motion (Codrington v Churcher, 209 A.D.3d 626, 627; see CPLR 5015[a][1]). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion (see Codrington v Churcher, 209 A.D.3d at 627; Ki Tae Kim v Bishop, 156 A.D.3d 776, 777). "[T]he 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; see Kyung Aye Yoon v Haktung Lam, 222 A.D.3d 959, 960).
The plaintiff's conclusory allegations of law office failure were insufficient to demonstrate a reasonable excuse for his default in this case (see Kyung Aye Yoon v Haktung Lam, 222 A.D.3d at 960; Beach 28 RE, LLC v Somra, 216 A.D.3d 610, 612). Because the plaintiff failed to establish a reasonable excuse for his default, "it is not necessary to determine whether [he] demonstrated the existence of a potentially meritorious [opposition]" (Kyung Aye Yoon v Haktung Lam, 222 A.D.3d at 960; see Beach 28 RE, LLC v Somra, 216 A.D.3d at 612) .
The plaintiff's remaining contentions need not be reached in light of our determination.
IANNACCI, J.P., WOOTEN, GENOVESI and DOWLING, JJ., concur.