Opinion
11476 Index 156412/15
05-07-2020
Jaime KOWAL, et al., Plaintiffs–Appellants, v. JACKFROMBROOKLYN INCORPORATED, etc., Defendant, Erech Swanston also known as Jackie Summers, etc., Defendant–Respondent.
The Law Office of Justine T. Rousseau, Brooklyn (Justine T. Rousseau of counsel), for appellant.
The Law Office of Justine T. Rousseau, Brooklyn (Justine T. Rousseau of counsel), for appellant.
Acosta, P.J., Renwick, Richter, Gonza´lez, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about December 14, 2018, which granted the motion of defendant Erech Swanston to vacate the default judgment previously entered against him, unanimously reversed, on the law and the facts, with costs, and the motion denied.
The motion court thought that Swanston's excuses might not be valid but that they were "plausible." However, plausibility is not the standard; rather, on a CPLR 5015(a)(1) motion, the movant must show a reasonable excuse for his default (see e.g. Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ). Swanston's one-sided understanding that plaintiffs would refrain from prosecuting their lawsuit while defendant JackFromBrooklyn Inc. (JFB) negotiated to sell itself did not constitute a reasonable excuse for failing to answer (see e.g. Sunrise Capital Partners Mgt. LLC v. Glattstein, 115 A.D.3d 602, 982 N.Y.S.2d 321 [1st Dept. 2014] ).
Given the absence of a reasonable excuse, we "need not determine whether a meritorious defense exists" ( id. ). In any event, Swanston failed to show that he did not "exercise[ ] complete domination and control over" JFB ( East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 16 N.Y.3d 775, 776, 919 N.Y.S.2d 496, 944 N.E.2d 1135 [2011] )—in fact, he did not deny this—or that he did not "abuse[ ] the privilege of doing business in the corporate form to perpetrate a wrong or injustice" ( id. [internal quotation marks omitted] ). Swanston justified only the use of JFB's corporate credit cards for restaurant tabs; he did not address the use of the corporation's funds for other personal expenses such as payments to his girlfriend, pet supplies, groceries, clothes, video on demand, and sound therapy.
The IAS court did not grant the branch of Swanston's motion that was pursuant to CPLR 5015(a)(3). In any event, Swanston failed to show that plaintiffs obtained the default judgment through fraud, misrepresentation, or other misconduct (see generally Greenwich Sav. Bank v. JAJ Carpet Mart, 126 A.D.2d 451, 453, 510 N.Y.S.2d 594 [1st Dept. 1987] ).