Opinion
02-21-2024
Robert L. TIMMERMAN, et al., appellants, v. Florence GENTILE, et al., respondents.
Robert L. Timmerman and Barbara H. Timmerman, Little Neck, NY, appellants pro se. Capell Barnett Matalon & Schoenfeld LLP, New York, NY (Michelangelo Macchiarella of counsel), for respondents.
Robert L. Timmerman and Barbara H. Timmerman, Little Neck, NY, appellants pro se.
Capell Barnett Matalon & Schoenfeld LLP, New York, NY (Michelangelo Macchiarella of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lourdes M. Ventura, J.), dated November 14, 2022. The order, insofar as appealed from, granted the defendants’ motion for leave to enter a default judgment against the plaintiffs on their counterclaims.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On December 24, 2021, the plaintiffs commenced this action against the defendants to recover damages for breach of a lease agreement. On January 31, 2022, the defendants joined issue by serving an answer with counterclaims. By notice of motion dated March 11, 2022, the defendants moved for leave to enter a default judgment against the plaintiffs upon their failure to reply to the counterclaims. The plaintiffs opposed the motion, asserting, as a reasonable excuse for the delay, that, they were attempting to negotiate a settlement. In an order dated November 14, 2022, the Supreme Court, inter alia, granted the defendants’ motion for leave to enter a default judgment against the plaintiffs on their counterclaims. The plaintiffs appeal.
[1, 2] To successfully oppose the motion for leave to enter a default judgment based on the failure to timely serve a reply to the defendants’ counterclaims, the plaintiffs were required to demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the counterclaims (see Diuccio v. Soren, 96 A.D.3d 994, 995, 947 N.Y.S.2d 563; Maurice v. Maurice, 78 A.D.3d 792, 793, 910 N.Y.S.2d 658). While settlement negotiations, in certain instances, may constitute a reasonable excuse for a default (see Performance Constr. Corp. v. Huntington Bldg., LLC, 68 A.D.3d 737, 738, 888 N.Y.S.2d 892; Armstrong Trading, Ltd. v. MBM Enters., 29 A.D.3d 835, 836,, 815 N.Y.S.2d 689), here, the plaintiffs failed to present any evidence of settlement negotiations between the parties. As the plaintiffs failed to offer a reasonable excuse for their default, the Supreme Court providently exercised its discretion in granting the defendants’ motion for leave to enter a default judgment against the plaintiffs on the counterclaims (see Diuccio v. Soren, 96 AD.3d at 995, 947 N.Y.S.2d 563). Inasmuch as the plaintiffs failed to demonstrate a reasonable excuse for their default, we need not consider whether they offered a potentially meritorious defense to the counterclaims (see OneWest Bank v. Schiffman, 175 A.D.3d 1543, 1545, 109 N.Y.S.3d 865).
BRATHWAITE NELSON, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.