| Heidari v First Advance Funding Corp. |
| 2008 NY Slip Op 07866 [55 AD3d 669] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Abdolreza Heidari, Respondent, v First Advance Funding Corp.et al., Appellants, et al., Defendant. |
—[*1] Mark L. Cortegiano, Middle Village, N.Y., for respondent.
In an action to impress an equitable mortgage upon real property owned by the defendant NYPride Holdings, Inc., and to recover the proceeds of a loan, the defendants First Advance FundingCorp., NY Pride Holdings, Inc., and Esmaeil Hosseinipour appeal, as limited by their brief, from somuch of an order of the Supreme Court, Queens County (Satterfield, J.), dated August 21, 2007, asdenied their motion to vacate a prior order of the same court dated May 30, 2007 granting the plaintiff'smotion for a preliminary injunction upon their default in opposing the motion, to vacate their default inappearing or answering the complaint, and for leave to serve a late answer nunc pro tunc.
Ordered that the order dated August 21, 2007 is affirmed insofar as appealed from, with costs.
In seeking to vacate their default in appearing or answering the complaint, the appellants wererequired to demonstrate a reasonable excuse for their default and a meritorious defense to the action(see CPLR 5015 [a] [1]; Fekete vCamp Skwere, 16 AD3d 544 [2005]; Caputo v Peton, 13 AD3d 474 [2004]; Glibbery v Cosenza & Assoc., 4 AD3d393 [2004]). The excuse offered by the appellants' attorney failed to adequately explain the defaultin serving a timely answer. The alleged error, counsel's neglect to give the summons and complaint tohis assistant to open a file, cannot account for the more than [*2]three-month delay in serving an answer when counsel had full knowledgeof the action (see Ortega v Bisogno &Meyerson, 38 AD3d 510, 511 [2007]; Incorporated Vil. of Hempstead v Jablonsky,283 AD2d 553, 553-554 [2001]; De Vito v Marine Midland Bank, 100 AD2d 530, 531[1984]). Furthermore, the appellants failed to demonstrate a meritorious defense to the action.Accordingly, those branches of the appellants' motion which were to vacate their default in appearing oranswering and for leave to serve a late answer nunc pro tunc were properly denied.
Moreover, the defendants failed to demonstrate that they had a meritorious opposition to theplaintiff's motion for a preliminary injunction (see Aetna Ins. Co. v Capasso, 75 NY2d 860,862 [1990]; Ocean Club v Incorporated Vil.of Atl. Beach, 6 AD3d 593 [2004]; Price Paper & Twine Co. v Miller, 182 AD2d748 [1992]). Accordingly, the Supreme Court properly denied that branch of the appellants' motionwhich was to vacate the order dated May 30, 2007 granting the plaintiff's motion for a preliminaryinjunction upon the appellants' default in opposing the motion (see Joseph v GMAC Leasing Corp., 44 AD3d 905 [2007]; St. Rose v McMorrow, 43 AD3d1146 [2007]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur. [See2007 NY Slip Op 32895(U).]