Opinion
2012-11-7
Aleksandr GLUKHMAN, etc., respondent, v. BAY 49TH ST. CONDOMINIUM, LLC, et al., appellants.
Elliott S. Martin, Brooklyn, N.Y. (Benjamin M. Oxenburg of counsel), for appellants. Malvina Lin, P.C., Brooklyn, N.Y., for respondent.
Elliott S. Martin, Brooklyn, N.Y. (Benjamin M. Oxenburg of counsel), for appellants. Malvina Lin, P.C., Brooklyn, N.Y., for respondent.
RANDALL T. ENG, P.J., ANITA R. FLORIO, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 22, 2011, as denied that branch of their motion which was to vacate a judgment of the same court dated November 26, 2010, entered, in effect, upon their default in opposing the plaintiff's motion pursuant to CPLR 3126, among other things, to preclude them from presenting evidence at trial, and upon their default in opposing the plaintiff's motion for summary judgment on the complaint, which is in favor of the plaintiff and against them in the principal sum of $111,745.50.
ORDERED that the order is affirmed insofar as appealed from, with costs.
To prevail on that branch of their motion which was to vacate the judgment entered upon their defaults, the defendants were required to demonstrate both a reasonable excuse for the defaults and the existence of a potentially meritorious defense ( seeCPLR 5015[a]; People's United Bank v. Latini Tuxedo Mgt., LLC, 95 A.D.3d 1285, 1286, 944 N.Y.S.2d 909;Canty v. Gregory, 37 A.D.3d 508, 508, 829 N.Y.S.2d 694). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court ( see Morales v. Perfect Dental, P.C., 73 A.D.3d 877, 878, 899 N.Y.S.2d 883), and in exercising that discretion, the court may accept law office failure as an excuse ( seeCPLR 2005; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357). However, law office failure should not be excused where “ ‘a default results not from an isolated, inadvertent mistake, but from repeated neglect’ ” ( Gutman v. A to Z Holding Corp., 91 A.D.3d 718, 719, 936 N.Y.S.2d 316, quoting Chery v. Anthony, 156 A.D.2d 414, 417, 548 N.Y.S.2d 535), or where allegations of law office failure are vague, conclusory, and unsubstantiated ( see Cantor v. Flores, 94 A.D.3d 936, 936–937, 943 N.Y.S.2d 138;see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 904, 866 N.Y.S.2d 357).
Here, the defendants failed to establish a reasonable excuse for their repeated defaults ( see Gutman v. A to Z Holding Corp., 91 A.D.3d at 719, 936 N.Y.S.2d 316;North Fork Bank v. Martin, 257 A.D.2d 613, 613, 684 N.Y.S.2d 289;Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66;Chery v. Anthony, 156 A.D.2d at 417, 548 N.Y.S.2d 535;see also Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 678, 810 N.Y.S.2d 923;Fischman v. Gilmore, 246 A.D.2d 508, 508, 666 N.Y.S.2d 942;Morel v. Clacherty, 186 A.D.2d 638, 639, 589 N.Y.S.2d 778).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was to vacate the judgment entered upon their defaults, which is in favor of the plaintiff and against them in the principal sum of $111,745.50.