| Star Indus., Inc. v Innovative Beverages, Inc. |
| 2008 NY Slip Op 08318 [55 AD3d 903] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Star Industries, Inc., Respondent, v Innovative Beverages, Inc.,Doing Business as Gecko Tequila Company, et al., Appellants. |
—[*1] Steinberg, Fineo, Berger & Fischoff, P.C., Woodbury, N.Y. (Laurie Sayevich Horz of counsel),for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Austin, J.),dated April 23, 2007, as denied that branch of their motion which was to vacate so much of a judgmentof the same court entered June 22, 2005, upon their default in appearing at two scheduled conferencesand answering the amended verified complaint, as was in favor of the plaintiff and against them in theprincipal sum of $602,540.61, (2) from an order of the same court dated July 24, 2007, which deniedtheir motion for leave to renew and reargue their prior motion to vacate the judgment entered June 22,2005, and (3) from an amended judgment of the same court dated November 1, 2007, which is infavor of the plaintiff and against them in the principal sum of $578,313.74.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the amended judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeals from the intermediate order dated April 23, 2007, and so much of the intermediateorder dated July 24, 2007, as denied that branch of the defendants' motion which was for leave torenew their motion to vacate the judgment entered June 22, 2005, must be dismissed because the rightof direct appeal therefrom terminated with the entry of the amended judgment in [*2]the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). Theissues raised on these appeals from the orders are brought up for review and have been considered onthe appeal from the amended judgment (see CPLR 5501 [a] [1]). The appeal from so much ofthe intermediate order dated July 24, 2007, as denied that branch of the defendants' motion which wasfor leave to reargue their motion to vacate the judgment entered June 22, 2005, must be dismissedbecause no appeal lies from an order denying reargument.
To prevail on their motion to vacate their default, the defendants were required to demonstrateboth a reasonable excuse for the default and the existence of a meritorious defense (see CPLR5015 [a]; Papandrea v Acevedo, 54AD3d 915 [2008]; Vasquez v NewYork City Hous. Auth., 51 AD3d 781 [2008]). The determination of what constitutes areasonable excuse for a default lies within the sound discretion of the Supreme Court (see Antoine v Bee, 26 AD3d 306[2006]; Matter of Hye-Young Chon vCountry-Wide Ins. Co., 22 AD3d 849 [2005]), and in exercising that discretion, the courtmay accept law office failure as an excuse (see CPLR 2005; Papandrea v Acevedo, 54 AD3d 915[2008]; Goldstein v MeadowsRedevelopment Co Owners Corp. I, 46 AD3d 509, 511 [2007]; Chiarello v Alessandro, 38 AD3d 823,824 [2007]). However, law office failure should not be excused where there is a pattern of willfuldefault and neglect (see Santiago v NewYork City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]), or where allegations of lawoffice failure are conclusory and unsubstantiated (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784[2008]; Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002]).
Here, the Supreme Court providently exercised its discretion in rejecting the defendants'explanation for their default. The defendants' proffered excuse of law office failure did not constitute areasonable excuse for their default (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47AD3d at 784; Chiarello v Alessandro, 38 AD3d at 824; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849[2005]). In view of the lack of a reasonable excuse, it is unnecessary to consider whether thedefendants sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519, 520[2007]; Mjahdi v Maguire, 21 AD3d1067, 1068 [2005]; Krieger vCohan, 18 AD3d 823, 824 [2005]).
The defendants' remaining contentions are without merit. Rivera, J.P., Lifson, Miller and Eng, JJ.,concur. [See 16 Misc 3d 1114(A), 2007 NY Slip Op 51421(U).]