CEO Business Brokers, Inc. v. Alqabili — 105 A.D.3d 989

Majority

p. 989

CEO Business Brokers, Inc., Appellant, v Fathi Alqabili et al., Respondents.

[963 NYS2d 711]

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), entered June 26, 2012, as granted those branches of the defendants’ motion which were pursuant to CPLR 5015 (a) (1) to vacate a prior order of the same court granting the plaintiffs unopposed motion for leave to enter judgment on the issue of liability against the defendants, upon their default in appearing or answering, and, in effect, to deem the defendants’ answer timely served.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion which were pursuant to CPLR 5015 (a) (1) to vacate a prior order granting the plaintiffs unopposed motion for leave to enter judgment on the issue of liability against the defendants, and, in effect, to deem the defendants’ answer timely served, are denied.

A defendant seeking to vacate a default in appearing or

p. 990

answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Bontempts v Aude Constr. Corp., 98 AD3d 1071 , 1072 [2012]; US Bank N.A. v Stewart, 97 AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701 [2012]). While the defendants may have proffered a reasonable excuse for the initial two-month delay in retaining their current attorney (see Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 , 763 [2010]), the subsequently retained attorney failed to proffer a reasonable excuse for the further four-month delay in moving to vacate the default and for leave to serve a late answer (see CPLR 2214; Fenner v County of Nassau, 80 AD3d 555 , 556 [2011]; 47 Thames Realty, LLC v Robinson, 61 AD3d 923 , 924 [2009]; Murray v New York City Health & Hosps. Corp., 52 AD3d 792 , 794 [2008]). Although the Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Swensen v MV Transp., Inc., 89 AD3d 924 , 925 [2011]), the excuse must be supported by detailed allegations of fact explaining the law office failure (see Matter of Esposito, 57 AD3d 894 , 895 [2008]; Gazetten Contr., Inc. v HCO, Inc., 45 AD3d 530 [2007]). Here, defense counsel’s allegation of law office failure was vague, conclusory, unsubstantiated (see HSBC Bank USA N.A. v Wider, 101 AD3d 683 [2012]; Cantor v Flores, 94 AD3d 936 , 937 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 , 789-790 [2011]), and unreasonable under the circumstances (cf. Stolpiec v Wiener, 100 AD2d 931 , 932 [1984]).

In view of the absence of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Trepel v Greenman-Pedersen, Inc., 99 AD3d 789 , 792 [2012]; Tribeca Lending Corp. v Correa, 92 AD3d 770 , 771 [2012]; Alterbaum v Shubert Org., Inc., 80 AD3d 635 , 636 [2011]).

Accordingly, the Supreme Court erred in granting that branch of the defendants’ motion which was to vacate the prior order entered on their default.

The plaintiffs remaining contentions have been rendered academic in light of our determination.

Skelos, J.P, Chambers, Sgroi and Hinds-Radix, JJ., concur.

Cases cited

Bontempts v. Aude Construction Corp. 98 AD3d 1071 N.Y. App. Div. 2012-09-26 at 1072 p. 990
U.S. Bank National Ass'n v. Stewart 97 AD3d 740 N.Y. App. Div. 2012-07-18 p. 990
Deutsche Bank National Trust Co. v. Luden 91 AD3d 701 N.Y. App. Div. 2012-01-17 p. 990
Merchants Insurance Group v. Hudson Valley Fire Protection Co. 72 AD3d 762 N.Y. App. Div. 2010-04-13 at 763 p. 990
Fenner v. County of Nassau 80 AD3d 555 N.Y. App. Div. 2011-01-11 at 556 p. 990
47 Thames Realty, LLC v. Robinson 61 AD3d 923 N.Y. App. Div. 2009-04-28 at 924 p. 990
Swensen v. MV Transportation, Inc. 89 AD3d 924 N.Y. App. Div. 2011-11-15 at 925 p. 990
In re the Estate of Esposito 57 AD3d 894 N.Y. App. Div. 2008-12-23 at 895 p. 990
Gazetten Contracting, Inc. v. HCO, Inc. 45 AD3d 530 N.Y. App. Div. 2007-11-07 p. 990
Cantor v. Flores 94 AD3d 936 N.Y. App. Div. 2012-04-17 at 937 p. 990
Wells Fargo Bank v. Cervini 84 AD3d 789 N.Y. App. Div. 2011-05-03 at 789-790 p. 990
Trepel v. Greenman-Pedersen, Inc. 99 AD3d 789 N.Y. App. Div. 2012-10-10 at 792 p. 990
Alterbaum v. Shubert Organization, Inc. 80 AD3d 635 N.Y. App. Div. 2011-01-18 at 636 p. 990