| Davidson v Valentin |
| 2009 NY Slip Op 06500 [65 AD3d 1075] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Edward Davidson et al., Respondents, v Danny Valentin etal., Appellants. |
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Robert S. Rosman, New York, N.Y., for respondents.
In an action, inter alia, for injunctive relief to abate a private nuisance and to recoverdamages for private nuisance, the defendants appeal from an order of the Supreme Court,Westchester County (Liebowitz, J.), entered September 8, 2008, which denied their motion tovacate a judgment of the same court entered February 28, 2008, upon their default in appearingat the trial, and after an inquest on the issue of damages, in favor of the plaintiffs and againstthem.
Ordered that the order is affirmed, with costs.
On October 26, 2007 a stipulation was "so-ordered," in which the parties consented to theentry of a judgment in favor of the plaintiffs on their first cause of action, inter alia, to direct thedefendants to repair or replace a retaining wall on the defendants' property in compliance withthe terms of an access agreement executed by the parties on the same date. The stipulationprovided that if the defendants failed to comply with the terms of the judgment, the parties wouldplace the remaining causes of action on the trial calendar. After the defendants failed to timelycomply with the terms of the judgment, the plaintiffs placed the remaining causes of action onthe trial calendar. Thereafter, the defendants obtained multiple adjournments of the trial date inan effort to comply with the terms of the access agreement. When the defendants' attorney failedto appear for trial on the third adjourned date of January 28, 2008, the court held an inquest onthe issue of damages and entered a judgment in favor of the plaintiffs on February 28, 2008. OnApril 23, 2008 the defendants moved to vacate the judgment.
To vacate their default in appearing at the trial, the defendants were required to demonstrateboth a reasonable excuse for the default and a meritorious defense to the action (seeCPLR 5015 [a] [1]; Zaidi v NewYork Bldg. Contrs., Ltd., 61 AD3d 747 [2009]; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782 [2008];Conserve Elec., Inc. v Tulger Contr.Corp., 36 AD3d 747 [2007]). Although the court may, in its discretion, accept lawoffice failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203AD2d 333 [1994]), " 'a pattern of willful default and neglect' should not be excused"(Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997], quoting Gannon v JohnsonScale Co., 189 AD2d 1052, 1052 [1993]). The statements by the defendants' attorneyregarding his personal problems did [*2]not adequately explainthe defendants' failure to comply with the time and terms of the court-ordered stipulation,judgment, and access agreement dated October 26, 2007, and to comply with those terms duringthe subsequent extensions of those deadlines, and defense counsel's failure to appear on theadjourned trial date even though he knew his attempts to further adjourn the trial had beenunsuccessful (see Joseph v GMACLeasing Corp., 44 AD3d 905 [2007]; Wechsler v First Unum Life Ins. Co., 295AD2d 340 [2002]; Foster v Gherardi, 201 AD2d 701 [1994]). Furthermore, thedefendants failed to demonstrate that they have a meritorious defense (see Buchanan vCardozo, 24 AD2d 620, 621 [1965], affd in part and dismissed in part 16 NY2d1029 [1965]). Accordingly, the defendants' motion was properly denied. Rivera, J.P., Dillon,Covello, Eng and Hall, JJ., concur.