| Levi v Levi |
| 2007 NY Slip Op 09561 [46 AD3d 519] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Sigal Levi, Respondent, v Yaccov Levi,Appellant. |
—[*1] Kliegerman & Joseph, LLP, New York, N.Y. (Michael P. Joseph of counsel), forrespondent.
In an action to impose a constructive trust on certain real property, the defendant appealsfrom an order of the Supreme Court, Kings County (Ambrosio, J.), dated June 13, 2005, whichdenied his motion pursuant to CPLR 5015 to vacate a prior order and judgment (one paper) of thesame court dated February 4, 2005, granting the plaintiff's motion for leave to enter judgmentagainst him upon his default in appearing or answering the complaint, and which was in favor ofthe plaintiff and against him adjudging that he held title to a one-half interest in the subject realproperty only as a constructive trustee for the benefit of the plaintiff, and adjudging that his title,right, and interest in the subject property was conveyed to the plaintiff.
Ordered that the order is affirmed, with costs.
A party seeking to vacate a default in appearing or answering must demonstrate a reasonableexcuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Canty v Gregory, 37 AD3d 508[2007]; Mjahdi v Maguire, 21AD3d 1067 [2005]; Taylor vSaal, 4 AD3d 467 [2004]). The determination of what constitutes a reasonable excuselies within the sound discretion of the Supreme Court (see Matter of Gambardella v OrtovLight., 278 AD2d 494 [2000]; MacMarty, Inc. v Scheller, 201 AD2d 706 [1994]).
Here it is undisputed that the defendant was properly served with the summons and verifiedcomplaint, and that he subsequently failed to answer or otherwise appear in the action. Thedefendant offered no reasonable excuse for his failure to answer or appear in the action (see New York Hosp. Med. Ctr. of Queens vInsurance Co. of State of Pa., 16 AD3d 391, 392 [2005]; Amato v Fast Repair, [*2]Inc., 15 AD3d 429, 430 [2005]). Accordingly, the SupremeCourt did not improvidently exercise its discretion in denying the defendant's motion to vacatehis default (see Canty v Gregory, 37 AD3d at 509; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671[2006]; Krieger v Cohan, 18 AD3d823 [2005]; Ennis v Lema, 305 AD2d 632 [2003]). In view of the lack of reasonableexcuse, it is unnecessary to consider whether the defendant sufficiently demonstrated theexistence of a meritorious defense (see Mjahdi v Maguire, 21 AD3d at 1067; American Shoring, Inc. v D.C.A. Constr.,Ltd. 15 AD3d 431 [2005]).
The defendant's remaining contentions are not reviewable on appeal. His claim regarding thecourt's denial of his application for the appointment of a guardian ad litem is not reviewablebecause he did not include, in the record on appeal, the letter from his doctor containing theallegation that he was incompetent (see CPLR 5526; Salem v Mott, 43 AD3d 397 [2007]; Cohen v Wallace & Minchenberg, 39AD3d 689 [2007]). Finally, since the defendant's claim that the Supreme Court should havejoined him as a necessary party in a related matrimonial action between the plaintiff and herhusband (see Levi v Levi, 46 AD3d 520 [2007] [decided herewith]) is raised for the firsttime on appeal, it, likewise, is not properly before this Court (see Krzyanowski v Eveready Ins. Co., 28 AD3d 613 [2006]; Gammal v La Casita Milta, 5 AD3d630, 631 [2004]; Zambito v Catanzaro, 264 AD2d 839 [1999]; Klein v CityCouncil for City of Long Beach, 236 AD2d 446 [1997]). Santucci, J.P., Krausman, Lifsonand Balkin, JJ., concur.