| ABS 1200, LLC v Kudriashova |
| 2009 NY Slip Op 01738 [60 AD3d 1164] |
| March 12, 2009 |
| Appellate Division, Third Department |
| ABS 1200, LLC, Doing Business as Mountainview Equities, et al.,Respondents, v Valentina Kudriashova et al., Appellants, et al.,Defendant. |
—[*1] S. Herman Klarsfeld, New York City, for respondents.
Kane, J. Appeals (1) from an order of the Supreme Court (Sackett, J.), entered November 15,2006 in Sullivan County, which, among other things, granted plaintiffs' motion for a defaultjudgment against defendants Valentina Kudriashova and Park House Resort, Inc., and (2) froman order of said court, entered July 24, 2007 in Sullivan County, which, among other things,denied said defendants' motion to vacate the default judgment.
Defendant Valentina Kudriashova entered into negotiations with plaintiff AlexanderAshkenazi regarding the sale of a parcel of real property in Sullivan County to a limited liabilitycompany controlled by Ashkenazi, culminating in a contract between Kudriashova and ABS,LLC. It turns out that ABS, LLC is a defunct corporation with which Ashkenazi allegedly has noassociation; Ashkenazi's limited liability company has the similar name ABS 1200, LLC. Afternumerous unsuccessful attempts to schedule a closing, plaintiffs commenced this action seekingreformation of the contract to list ABS 1200, LLC as the buyer, and specific performance of the[*2]reformed contract. Defendants Park House Resort,Inc.[FN1]and Kudriashova (hereinafter collectively referred to as defendants) served a pre-answer motionto dismiss the complaint on various grounds. In September 2005, Supreme Court (Clemente, J.)partially denied the motion, finding that plaintiffs sufficiently pleaded a cause of action forreformation, but dismissed Ashkenazi's individual cause of action.
On October 17, 2005, plaintiffs served notice of entry of the September 2005 order ondefendants' counsel. By letter dated March 1, 2006, plaintiffs notified counsel that they had notreceived an answer. Despite assurances by defendants' counsel, no answer was ever served. InJuly 2006, plaintiffs moved for a default judgment against defendants. Defendants opposed themotion and cross-moved for leave to file an answer. In November 2006, Supreme Court (Sackett,J.) granted plaintiffs' motion and denied the cross motion. Defendants later filed motions to,among other things, renew their prior cross motion and vacate the default judgment. The courtdenied those motions. Defendants appeal from the orders granting plaintiffs a default judgmentand denying defendants' later motions.[FN2]
Supreme Court properly granted plaintiffs' motion for a default judgment[FN3]and denied defendants' motion to vacate that judgment. Defendants stipulated that the courtobtained personal jurisdiction over them. Plaintiffs submitted the verified complaint andcounsel's affidavit detailing the default (see CPLR 3215 [a], [f]). Defendantsacknowledged that prior counsel failed to file an answer following the court's denial of theirpre-answer motion to dismiss, thus creating a default. In opposition, in addition to not attaching aproposed answer, defendants submitted only an attorney affirmation which failed to providefacts, by someone with personal knowledge, related to the reasonable excuse for default or theexistence of a meritorious defense (cf.Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2005]). Thus, the courtcorrectly granted the motion for a default judgment, as defendants even acknowledged in theirpapers seeking to vacate that judgment.
The information provided on defendants' motion to renew and the motion to vacate thedefault judgment failed to contain any new information that was not available to defendants atthe time the default judgment was granted, nor did defendants adequately explain why any suchinformation could not have been brought before the court in the first instance (see MainesPaper & Food Serv. v Farmington Foods, 233 AD2d 595, 596 [1996]). Thus, the courtappropriately denied defendants' motions.
Defendants' remaining arguments have been reviewed and found without merit.[*3]
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur.Ordered that the orders are affirmed, with costs.
Footnote 1: While plaintiffs were still tryingto arrange a closing, Kudriashova transferred the property to Park House Resort, Inc., acorporation in which she is the majority shareholder.
Footnote 2: As defendants did not appealthe September 2005 order, the merits of that order are not before us on this appeal.
Footnote 3: While an order entered upondefault is generally not appealable (see CPLR 5511), that prohibition does not applywhere the defaulting party appears and contests the application for a default judgment (seeRobert Marini Bldr. v Rao, 263 AD2d 846, 848 [1999]).