Opinion
2015-08665 Index No. 21443/12.
03-09-2016
CREDIT BUREAU OF NEW YORK, INC., appellant, v. RAPID REALTY 95, INC., et al., defendants, Fotius Eugenis, also known as Fotios Eugenis, also known as Frank Eugenis, respondent.
Cuddy & Feder LLP, White Plains, N.Y. (Joshua E. Kimerling and Brendan Goodhouse of counsel), for appellant. The Dweck Law Firm, LLP, New York, N.Y. (Jack S. Dweck and Christopher Fraser of counsel), for respondent.
Cuddy & Feder LLP, White Plains, N.Y. (Joshua E. Kimerling and Brendan Goodhouse of counsel), for appellant.
The Dweck Law Firm, LLP, New York, N.Y. (Jack S. Dweck and Christopher Fraser of counsel), for respondent.
Opinion
In an action to recover on two promissory notes and personal guarantees on the notes, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 27, 2015, which granted the motion of the defendant Fotius Eugenis, also known as Fotios Eugenis, also known as Frank Eugenis, to vacate a prior order of the same court dated May 11, 2015, granting the plaintiff's unopposed motion pursuant to CPLR 3126 to strike his answer.
ORDERED that the order is affirmed, with costs.
To vacate his default in opposing the plaintiff's motion pursuant to CPLR 3126 to strike his answer, which was granted in an order dated May 11, 2015, the defendant Fotius Eugenis, also known as Fotios Eugenis, also known as Frank Eugenis (hereinafter the defendant), was required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the plaintiff's motion (see CPLR 5015[a]1; Oller v. Liberty Lines Tr., Inc., 111 A.D.3d 903, 904, 975 N.Y.S.2d 768; Schenk v. Staten Is. Univ. Hosp., 108 A.D.3d 661, 662, 969 N.Y.S.2d 519; Smyth v. Getty Petroleum Mktg., Inc., 103 A.D.3d 790, 959 N.Y.S.2d 543). The defendant demonstrated that the failure to submit written opposition to the plaintiff's motion to strike his answer was due to law office failure occasioned by the substitution of counsel (see Evolution Impressions, Inc. v. Lewandowski, 59 A.D.3d 1039, 1040, 873 N.Y.S.2d 405; Drummond v. Petito, 253 A.D.2d 407, 408, 677 N.Y.S.2d 133; Seashells, Inc. v. Bridge Art Prods., 172 A.D.2d 353, 568 N.Y.S.2d 617; Lovisa Constr. Co. v. Facilities Dev. Corp., 148 A.D.2d 913, 914, 539 N.Y.S.2d 541). Furthermore, the defendant demonstrated a potentially meritorious opposition to the plaintiff's motion (see Poveromo v. Kelley–Amerit Fleet Servs., Inc., 127 A.D.3d 1048, 5 N.Y.S.3d 885; Palmieri v. Piano Exch., Inc., 124 A.D.3d 611, 1 N.Y.S.3d 315; Lomax v. Rochdale Vil., Inc., 76 A.D.3d 999, 907 N.Y.S.2d 690; Mawson v. Historic Props., LLC, 30 A.D.3d 480, 481, 817 N.Y.S.2d 364).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court providently exercised its discretion in granting the defendant's motion to vacate the prior order entered upon his default.
RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.