Opinion
No. 2021-04363m Index No. 700493/17
12-13-2023
Vincent Cortazar, etc., respondent, v. Cojam Construction, Inc., et al., appellants.
Jessica Drury (Courtney A. Bihn, Long Beach, NY, of counsel), for appellants. White, Cirrito, Nally & Lynch LLP, Hempstead, NY (Christopher M. Lynch of counsel), for respondent.
Jessica Drury (Courtney A. Bihn, Long Beach, NY, of counsel), for appellants.
White, Cirrito, Nally & Lynch LLP, Hempstead, NY (Christopher M. Lynch of counsel), for respondent.
MARK C. DILLON, J.P. VALERIE BRATHWAITE NELSON ROBERT J. MILLER JOSEPH J. MALTESE, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, and for rescission of a deed, the defendants appeal from a judgment of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered April 26, 2021. The judgment, upon an order of the same court entered April 15, 2021, denying the defendants' motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Jeremy S. Weinstein, J.) entered June 24, 2019, striking the defendants' answer upon their failure to appear at a trial conference, and after an inquest on the issue of damages, is in favor of the plaintiff and against the defendants in the total sum of $1,991,559.64.
ORDERED that the judgment is affirmed, with costs.
The plaintiff and his brother, the defendant James Cortazar (hereinafter the defendant Cortazar), allegedly formed Long Island City Corp., with each brother holding 50% of the shares. Long Island City Corp. owned and managed a parcel of real property located in Long Island City (hereinafter the subject property).
On January 10, 2017, the plaintiff commenced this action against the defendants, alleging that the defendant Cortazar transferred the subject property from Long Island City Corp. to the defendant Cojam Construction, Inc., a corporation owned solely by the defendant Cortazar. In the complaint, the plaintiff sought, inter alia, to recover damages for breach of fiduciary duty and conversion, and rescission of the deed transferring the subject property. In an order entered June 24, 2019, the Supreme Court struck the defendants' answer upon their failure to appear at a trial conference and directed an inquest on the issue of damages.
The Supreme Court conducted the inquest on December 2 and 3, 2019. During a lunch break at the inquest, the defendants moved pursuant to CPLR 5015(a)(1) to vacate the order entered June 24, 2019. In an order entered April 15, 2021, the court denied the defendants' motion. Thereafter, the court entered a judgment in favor of the plaintiff and against the defendants in the total sum of $1,991,559.64. The defendants appeal, and we affirm.
CPLR 5015(a)(1) provides that a party may be relieved from an order, among other grounds, upon the ground of "excusable default." In order to vacate their default in appearing, the defendants were required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Beach 28 RE, LLC v Somra, 216 A.D.3d 610). "Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse" (HSBC Bank USA, N.A. v Hutchinson, 215 A.D.3d 645, 646; see CPLR 2005). "Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court, the movant must provide a detailed and credible explanation for the purported law office failure, and where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable, and may properly be imputed to the client" (Yaghmour v Mittal, 208 A.D.3d 1283, 1287).
Here, the defendants failed to demonstrate a reasonable excuse. The defendants' failure to remain apprised of the status of their representation in the case for approximately six months and their failure to appear for the trial conference constituted a pattern of default and neglect which cannot be excused (see Yaghmour v Mittal, 208 A.D.3d at 1287; Vizelter v Strogov, 170 A.D.3d 917, 918-919). The affidavit of the defendant Cortazar was conclusory, undetailed, and uncorroborated and thus, insufficient to establish a reasonable excuse of the defendants' default (see Wright v Brooklyn Renaissance Funding Co., LLC, 174 A.D.3d 676, 677; Incorporated Vil. of Hempstead v Jablonsky, 283 A.D.2d 553, 554). Furthermore, to the extent that the affidavit of the defendant Cortazar's Florida attorney, submitted by the defendants in their reply papers, may properly be considered in response to allegations raised in the plaintiffs' opposition papers (see Pawelic v Siegel, 220 A.D.3d 883; Duran v Milford, 126 A.D.3d 932, 933), that affidavit was also insufficient to establish a reasonable excuse for the defendants' default (see Wright v Brooklyn Renaissance Funding Co., LLC, 174 A.D.3d at 677; Incorporated Vil. of Hempstead v Jablonsky, 283 A.D.2d at 554).
Since the defendants failed to demonstrate a reasonable excuse for their default, it is unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v Hasan, 126 A.D.3d 683, 684; Cervini v Cisco Gen. Constr., Inc., 123 A.D.3d 1077, 1077).
Accordingly, the Supreme Court properly denied the defendants' motion pursuant to CPLR 5015(a)(1) to vacate the order entered June 24, 2019.
In light of our determination, the plaintiff's remaining contention need not be reached.
DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur.