Opinion
15939N, 650375/13.
10-22-2015
JOHN WILEY & SONS, INC., et al., Plaintiffs–Appellants, v. Pierre GROSSMAN, Defendant–Respondent.
Balber Pickard Maldonado & Van Der Tuin, PC, New York (James A. Moss of counsel), for appellants. Rivkin Randler LLP, Uniondale (Merril S. Biscone of counsel), for respondent.
Balber Pickard Maldonado & Van Der Tuin, PC, New York (James A. Moss of counsel), for appellants.
Rivkin Randler LLP, Uniondale (Merril S. Biscone of counsel), for respondent.
TOM, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 29, 2015, which, to the extent appealed from, granted defendant's motion to vacate the default judgment against him, unanimously reversed, on the law, with costs, and the motion denied.
The motion to vacate the default judgment should not have been granted since defendant failed to demonstrate a reasonable excuse for his delay in appearing (see generally 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 [1986] ; CPLR 5015[a][1] ). The record shows that plaintiffs commenced this action on February 4, 2013 and served defendant pursuant to CPLR 308(2) on February 11. As can be seen from defendant's February 27, 2013 email to plaintiffs, in which he threatened them with litigation in Brazil if they did not withdraw the instant action, he had actual notice of this lawsuit by that date. Furthermore, by his own admission, defendant was aware by September 2013 that the court had granted plaintiffs' motion for a default judgment, yet he did not try to vacate it until January 8, 2014 at the earliest. This delay, coupled with defendant's conduct in a similar federal litigation, demonstrates that his failure to answer the complaint was willful and “part of a pattern of dilatory behavior” (D & R Global Selections, S.L. v. Bodega Olegario Falcón Piñeiro, 90 A.D.3d 403, 405, 934 N.Y.S.2d 19 [1st Dept.2011] [internal quotation marks omitted]; see also Cipriano v. Hank, 197 A.D.2d 295, 297–298, 610 N.Y.S.2d 523 [1994] ).
Defendant's belief, based on his own research, that he did not have to answer the complaint because plaintiffs had not served him either in person in New York or via letters rogatory in Brazil, does not constitute a reasonable excuse (see Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, 390–391, 869 N.Y.S.2d 886, 898 N.E.2d 929 [2008] ; see also D & R Global Selections, S.L., 90 A.D.3d at 405, 934 N.Y.S.2d 19 ).