Opinion
661 Index No. 155214/20 Case No. 2022–04753
09-28-2023
Angela SEITZER, Plaintiff–Respondent, v. Christopher M. MCFADDEN, Defendant–Appellant.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant. Storch Byrne LLP, New York (Steven G. Storch of counsel), for respondent.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant.
Storch Byrne LLP, New York (Steven G. Storch of counsel), for respondent.
Webber, J.P., Friedman, Gonza´lez, Rodriguez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about September 23, 2022, which denied defendant's motion to vacate a default judgment pursuant to CPLR 5015(a)(1), unanimously affirmed, without costs.
Defendant failed to demonstrate a reasonable excuse for his default, as he did not provide competent admissible medical evidence showing that his mental health issues prevented him from appearing and protecting his rights during the pendency of the action (see Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d 428, 428–429, 901 N.Y.S.2d 178 [1st Dept. 2010], lv dismissed 15 N.Y.3d 766, 906 N.Y.S.2d 810, 933 N.E.2d 209 [2010] ; Gonzalez v. Cirri, 56 A.D.3d 425, 867 N.Y.S.2d 148 [2d Dept. 2008] ; cf. Pierot v. Leopold, 154 A.D.3d 791, 792, 61 N.Y.S.3d 680 [2d Dept. 2017] ). Even if we were to consider the unsworn letters and emails from defendant's treatment providers, they fail to show that he was hospitalized or otherwise incapacitated when he was served with process or when plaintiff moved for a default judgment (see Bank of N.Y. v. Singh, 139 A.D.3d 486, 486, 33 N.Y.S.3d 1 [1st Dept. 2016] ). Defendant's claim that he was periodically incarcerated during the relevant period was similarly insufficient, as there was no indication that he was incarcerated when he was served with the summons and complaint.
Since defendant failed to provide an acceptable excuse for his default, we need not address whether he had a meritorious defense (see Lopez v. Mama's Fried Chicken, Inc., 202 A.D.3d 597, 598, 159 N.Y.S.3d 834 [1st Dept. 2022] ). In any event, defendant's conclusory assertions in his affidavit were insufficient to establish a meritorious defense (see NYCTL 1998–2 Trust v. Alanis Realty LLC, 176 A.D.3d 486, 487, 110 N.Y.S.3d 694 [1st Dept. 2019] ).