Opinion
No. 1064 CA 23-00105
02-09-2024
CLEARFUND SOLUTIONS LLC, PLAINTIFF-RESPONDENT, v. ANTON TOMASSETTI, DOING BUSINESS AS TONY'S TREE SERVICE AND ANTON TOMASSETTI, DEFENDANTS-APPELLANTS.
AMOS WEINBERG, GREAT NECK, FOR DEFENDANTS-APPELLANTS. WELLS LAW P.C., LANCASTER (STEVEN W. WELLS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
AMOS WEINBERG, GREAT NECK, FOR DEFENDANTS-APPELLANTS.
WELLS LAW P.C., LANCASTER (STEVEN W. WELLS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered March 9, 2022. The order denied the motion of defendants to, inter alia, vacate a default judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action for breach of contract and unjust enrichment seeking to recover under a merchant cash advance agreement (agreement) between plaintiff and defendant Anton Tomassetti, doing business as Tony's Tree Service (Tony's). Defendant Anton Tomassetti personally guaranteed Tony's performance of the agreement. Defendants failed to appear or answer, and a default judgment was entered against them. Defendants thereafter moved to, inter alia, vacate the default judgment, and they now appeal from an order denying their motion. We affirm.
We conclude that Supreme Court did not abuse its discretion in denying defendants' motion. To establish an excusable default under CPLR 5015 (a) (1), defendants were required to establish a reasonable excuse for the default as well as a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]; Fusion Funding v Loftti Inc., 216 A.D.3d 1416, 1416-1417 [4th Dept 2023]; Peroni v Peroni, 189 A.D.3d 2058, 2060 [4th Dept 2020]). "In determining whether to vacate an order entered on default, 'the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (Calaci v Allied Interstate, Inc. [appeal No. 2], 108 A.D.3d 1127, 1128 [4th Dept 2013]; see Matter of County of Livingston [Mort], 101 A.D.3d 1755, 1755 [4th Dept 2012], lv denied 20 N.Y.3d 862 [2013]). "[T]he determination of whether... to vacate a default... is generally left to the sound discretion of the court" (Peroni, 189 A.D.3d at 2060 [internal quotation marks omitted]; see Stonewell Bodies & Mach., Inc. v All Area Fire & Rescue Apparatus Sales, LLC, 213 A.D.3d 1237, 1238 [4th Dept 2023]).
Here, the only excuse defendants gave for their failure to answer the complaint was that they were not properly served with the papers-a contention they have abandoned on appeal-and thus they failed to establish a reasonable excuse for the default (see Stephan B. Gleich & Assoc. v Gritsipis, 87 A.D.3d 216, 221 [2d Dept 2011]). Inasmuch as defendants failed to establish a reasonable excuse for the default, "we need not determine whether [they] had a potentially meritorious defense" to the action (Peroni, 189 A.D.3d at 2060; see City of Utica v Mallette, 200 A.D.3d 1614, 1617 [4th Dept 2021]; Abbott v Crown Mill Restoration Dev., LLC, 109 A.D.3d 1097, 1100 [4th Dept 2013]).
We reject defendants' contention that the motion should have been granted and the default vacated "for sufficient reason and in the interests of substantial justice" based on the defense of criminal usury (Crystal Springs Capital, Inc. v Big Thicket Coin, LLC, 220 A.D.3d 745, 746 [2d Dept 2023] [internal quotation marks omitted]; see Slate Advance v Saygan Global Steel, Ltd., 206 A.D.3d 782, 783 [2d Dept 2022]; see also Piatt v Horsley, 108 A.D.3d 1188, 1189 [4th Dept 2013]). Defendants' remaining contentions are raised for the first time on appeal and are not properly before us (see O' Hara v City of Buffalo, 211 A.D.3d 1509, 1511 [4th Dept 2022]; Ciesinski v Town of Aurora, 202 A.D.2d 984, 985 [4th Dept 1994]).