Opinion
2013-06-5
FARM CREDIT LEASING SERVICES CORPORATION, respondent, v. Abraham A. RUBASHKIN, appellant.
J. Michael Gottesman, Kew Gardens, N.Y., for appellant. Buchanan Ingersoll & Rooney P.C., New York, N.Y. (Christopher P. Schueller, Cameron E. Grant, and Michael Reyen of counsel), for respondent.
J. Michael Gottesman, Kew Gardens, N.Y., for appellant. Buchanan Ingersoll & Rooney P.C., New York, N.Y. (Christopher P. Schueller, Cameron E. Grant, and Michael Reyen of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover on a guaranty, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated March 29, 2012, as denied his cross motion to vacate a judgment of the same court entered April 26, 2011, upon his default in answering, and to dismiss the complaint for failure to state a cause of action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A defendant seeking to vacate a default in answering must provide a reasonable excuse for the default and demonstrate 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;Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270;Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 958 N.Y.S.2d 472; Arias v. First Presbyt. Church in Jamaica, 100 A.D.3d 940, 941, 957 N.Y.S.2d 121;Kouzios v. Dery, 57 A.D.3d 949, 949, 871 N.Y.S.2d 303). Here, the defendant failed to demonstrate a reasonable excuse for his default in answering ( see Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 958 N.Y.S.2d 472;Abdul v. Hirschfield, 71 A.D.3d 707, 708, 898 N.Y.S.2d 44). The defendant's contention that he did not realize that his answer was due within a certain amount of time did not constitute a reasonable excuse for his default in answering ( see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 912 N.Y.S.2d 285;Yao Ping Tang v. Grand Estate, LLC, 77 A.D.3d 822, 823, 910 N.Y.S.2d 104;Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277). Furthermore, the defendant failed to substantiate his conclusory assertions that due to his ill health and psychological state, and his financial circumstances, he was unable to answer the complaint ( see Tuthill Fin., L.P. v. Ujueta, 102 A.D.3d 765, 766, 957 N.Y.S.2d 873;Stevens v. Charles, 102 A.D.3d 763, 764, 958 N.Y.S.2d 443;O'Donnell v. Frangakis, 76 A.D.3d 999, 1000, 908 N.Y.S.2d 589;Cuzzo v. Cuzzo, 65 A.D.3d 1274, 1275, 885 N.Y.S.2d 619). Since the defendant failed to demonstrate a reasonable excuse for his default in answering, the Supreme Court properly denied that branch of his cross motion which was to vacate the judgment. Contrary to the defendant's contention, the complaint's alleged failure to set forth sufficient facts to enable the Supreme Court to determine that the plaintiff possessed a viable cause of action is not a basis for vacatur of the judgment ( see Manhattan Telecommunications Corp. v. H & A, ––– N.Y.3d ––––, ––– N.Y.S.2d ––––, ––– N.E.2d –––– ;Zaidman v. Zaidman, 90 A.D.3d 1035, 1036–1037, 935 N.Y.S.2d 147).