Opinion
15357 Index No. 154638/18 Case No. 2021–02006
02-22-2022
Juanita LOPEZ, Plaintiff–Respondent, v. MAMA'S FRIED CHICKEN, INC., Defendant, Abdul Baki, Defendant–Appellant.
David Gevanter, Lindenhurst, for appellant. Akin Law Group PLLC, New York (Zafer A. Akin of counsel), for respondent.
David Gevanter, Lindenhurst, for appellant.
Akin Law Group PLLC, New York (Zafer A. Akin of counsel), for respondent.
Renwick, J.P., Kennedy, Scarpulla, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered February 22, 2021, which denied defendant Abdul Baki's motion to vacate a judgment entered upon his default, awarding plaintiff, after an inquest, damages and attorneys’ fees in the total amount of $540,760.71, unanimously affirmed, without costs.
In support of his motion to vacate the default judgment entered against him, defendant failed to present a reasonable excuse for his failure to answer the amended complaint or to oppose the motion for entry of a default judgment ( CPLR 5015[a] ; see Youni Gems Corp. v. Bassco Creations, Inc., 70 A.D.3d 454, 896 N.Y.S.2d 315 [1st Dept. 2010], lv dismissed 15 N.Y.3d 863, 909 N.Y.S.2d 693, 936 N.E.2d 460 [2010] ). The conclusory assertion of law office failure is asserted for the first time on appeal and is thus unpreserved (see e.g. Lutin v. SAP V/A Atlas 845 WEA Assoc. NF LLC, 157 A.D.3d 466, 466–467, 66 N.Y.S.3d 439 [1st Dept. 2018] ; Matter of AutoOne Ins. Co. v. Negron, 148 A.D.3d 534, 534, 50 N.Y.S.3d 51 [1st Dept. 2017] ), and in any event is unavailing. Even if the assertion were supported by any evidence, an assertion of law office failure should be rejected where "the record shows that defense counsel was fully aware of his obligations and intentionally and repeatedly failed to attend to them" ( Imovegreen, LLC v. Frantic, LLC, 139 A.D.3d 539, 540, 32 N.Y.S.3d 103 [1st Dept. 2016] ). Since defendant failed to provide an acceptable excuse for the defaults, it is unnecessary to address whether he had a meritorious defense (see Gonzalez v. Praise the Lord Dental, 79 A.D.3d 550, 550, 912 N.Y.S.2d 403 [1st Dept. 2010] ).
With respect to the award for emotional distress and punitive damages, defendant failed to submit the evidence that was presented to Supreme Court during the inquest, thus rendering any meaningful appellate review of the award impossible (see CPLR 5526 ; UBS Sec. LLC v. Red Zone LLC, 77 A.D.3d 575, 579, 910 N.Y.S.2d 55 [1st Dept. 2010], lv. denied, 17 N.Y.3d 706, 2011 WL 2568003 [2011] ).