Opinion
2017–09877 Index No. 57942/15
05-15-2019
BANK OF AMERICA, N.A., Respondent, v. CHAMPION DENTAL, P.C., et al., Appellants.
Rutkin & Wolf, PLLC, White Plains, N.Y. (Jason M. Wolf of counsel), for appellants. Buchanan Ingersoll & Rooney P.C., New York, N.Y. (Tanya D. Bosi and Jacqueline Weyand of counsel), for respondent.
Rutkin & Wolf, PLLC, White Plains, N.Y. (Jason M. Wolf of counsel), for appellants.
Buchanan Ingersoll & Rooney P.C., New York, N.Y. (Tanya D. Bosi and Jacqueline Weyand of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated August 10, 2017. The order denied the defendants' motion pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court dated December 28, 2016, entered upon their failure to answer the complaint.
ORDERED that the order is affirmed, with costs.
In May 2015, the plaintiff commenced this action alleging that the defendants defaulted on a loan agreement. Thereafter, the defendants moved, pro se, to dismiss the complaint. In an order dated March 16, 2016, the Supreme Court denied the motion and directed the defendants to serve an answer to the complaint within 20 days after they were served with a copy of the order with notice of entry. The defendants did not serve an answer, and in August 2016, the plaintiff moved for leave to enter a default judgment. The court granted the plaintiff's motion for leave to enter a default judgment, and a judgment dated December 28, 2016, was entered against the defendants. Thereafter, in May 2017, the defendants, through counsel, moved pursuant to CPLR 5015(a)(1) to vacate the judgment. The court denied the defendants' motion. The defendants appeal.
In order to vacate a default judgment pursuant to CPLR 5015(a)(1), the moving party must demonstrate a reasonable excuse for his or her default and a potentially meritorious defense to the action (see Hudson City Sav. Bank v. Bomba, 149 A.D.3d 704, 705, 51 N.Y.S.3d 570 ; see also On Assignment v. Medasorb Tech., LLC, 50 A.D.3d 342, 342, 855 N.Y.S.2d 98 ). " ‘The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court’ " ( HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32, quoting Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ).
Here, the defendants failed to meet their burden of demonstrating a reasonable excuse for their default. In its opposition to the defendants' motion to vacate, the plaintiff submitted affidavits of service establishing that the defendants were served by mail at their last known addresses with a copy of the order denying their motion to dismiss as well as copies of the plaintiff's notice of motion for leave to enter a default judgment and supporting papers, the order granting the plaintiff's motion, and the judgment entered against the defendants and in favor of the plaintiff. In the defendants' submissions in support of their motion to vacate, they did not dispute that such service was effected and did not allege that they ever informed the plaintiff of their new address.
Accordingly, we agree with the Supreme Court's determination that the defendants failed to demonstrate a reasonable excuse for their default (see PHH Mtge. Corp. v. Muricy, 135 A.D.3d 725, 727, 24 N.Y.S.3d 137 ; see also On Assignment v. Medasorb Tech., LLC, 50 A.D.3d at 342, 855 N.Y.S.2d 98 ). As the defendants failed to demonstrate a reasonable excuse for their default, we need not reach the issue of whether the defendants demonstrated the existence of a potentially meritorious defense (see Jing Shan Chen v. R & K 51 Realty, Inc., 148 A.D.3d 689, 691, 48 N.Y.S.3d 474 ; Bernstein v. Geiss, 111 A.D.3d 774, 775, 975 N.Y.S.2d 168 ).
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.