Opinion
2015-06-10
WHITESTONE CONSTRUCTION CORP., respondent, v. NOVA CASUALTY COMPANY, et al., defendants, ECT CET, LLC, et al., appellants.
Certilman, Balin, Adler & Hyman, LLP, East Meadow, N.Y. (James A. Rose of counsel), for appellants. Goetz Fitzpatrick LLP, New York, N.Y. (Donald J. Carbone and Joel G. MacMull of counsel), for respondent.
Certilman, Balin, Adler & Hyman, LLP, East Meadow, N.Y. (James A. Rose of counsel), for appellants. Goetz Fitzpatrick LLP, New York, N.Y. (Donald J. Carbone and Joel G. MacMull of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for breach of contract, the defendants ECT CET, LLC, and Evandelos Tritaris appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 8, 2013, which denied their motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated April 24, 2012, granting the plaintiff's motion, inter alia, for leave to enter a judgment against them upon their failure to appear at a status conference, to strike their answer for failure to comply with discovery orders, and directing an inquest on the issue of damages.
ORDERED that the order entered March 8, 2013, is affirmed, with costs.
To vacate a judgment entered upon their default in appearing at a status conference and upon the striking of their answer for failure to comply with discovery orders, Evangelos Tritaris, incorrectly sued herein as Evandelos Tritaris, and ECT CET, LLC (hereinafter together the ECT defendants), were required to demonstrate a reasonable excuse for these defaults and a potentially meritorious defense to the action ( seeCPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; Manufacturers & Traders Trust Co. v. Consolidated Constr. Group, LLC, 114 A.D.3d 834, 980 N.Y.S.2d 793; Kim v. S & M Caterers, Inc., 112 A.D.3d 581, 975 N.Y.S.2d 903). Here, the ECT defendants failed to demonstrate a reasonable excuse. The ECT defendants' repeated failures, inter alia, to (1) respond to the plaintiff's discovery demands, (2) comply with court orders requiring them to provide discovery, (3) appear in court, and (4) ascertain the status of the case, constituted a pattern of willful default and neglect which cannot be excused ( see Diamond Truck Leasing Corp. v. Cross Country Ins. Brokerage, Inc., 62 A.D.3d 745, 877 N.Y.S.2d 901; Goody v. Lloyd, 43 A.D.3d 390, 391, 840 N.Y.S.2d 429; Dave Sandel, Inc. v. Specialized Indus. Servs. Corp., 35 A.D.3d 790, 791, 826 N.Y.S.2d 735; Kumar v. Yonkers Contr. Co., Inc., 14 A.D.3d 493, 494, 788 N.Y.S.2d 408). In any event, the ECT defendants' conclusory allegation that they had no contractual relationship with the plaintiff was insufficient to establish a potentially meritorious defense to this action to recover damages for breach of contract ( see Diamond Truck Leasing Corp. v. Cross Country Ins. Brokerage, Inc., 62 A.D.3d at 746, 877 N.Y.S.2d 901; MRI Enters. v. Amanat, 263 A.D.2d 530, 531, 693 N.Y.S.2d 211). Accordingly, the Supreme Court properly denied the ECT defendants' motion pursuant to CPLR 5015(a)(1) to vacate an order dated April 24, 2012, granting the plaintiff's motion, inter alia, for leave to enter a judgment against them upon their failure to appear at a status conference, to strike their answer for failure to comply with discovery orders, and directing an inquest on the issue of damages.