| Counsel Fin. Servs., LLC v David McQuade Leibowitz, P.C. |
| 2009 NY Slip Op 08663 [67 AD3d 1483] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| Counsel Financial Services, LLC, Respondent, v David McQuadeLeibowitz, P.C., et al., Appellants. |
—[*1] Philip B. Abramowitz, Williamsville, for plaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (John M.Curran, J.), entered November 25, 2008. The order and judgment granted plaintiff's motion forsummary judgment in lieu of complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Defendants appeal from an order and judgment granting plaintiff's motion forsummary judgment in lieu of complaint pursuant to CPLR 3213. In granting plaintiff's motion,Supreme Court, inter alia, ordered defendants to pay a specified amount due on a promissorynote executed by defendant David McQuade Leibowitz, P.C. (DML), and personally guaranteedby David McQuade Leibowitz (defendant). We note at the outset that the contentions ofdefendants are properly before us despite the fact that the order and judgment was entered upontheir default. Although defendants did not move to vacate the order and judgment, they appearedin court on the adjourned return date of the motion and contested the entry of a default judgment(see Spano v Kline, 50 AD3d 1499 [2008], lv denied 11 NY3d 702 [2008], 12NY3d 704 [2009]; Jann v Cassidy, 265 AD2d 873, 874 [1999]; Spatz vBajramoski, 214 AD2d 436 [1995]). Nevertheless, we conclude that the court properlygranted the motion.
Plaintiff met its initial burden by submitting the promissory note, the personal guarantee, andevidence of DML's default (see LaMar v Vasile [appeal No. 4], 49 AD3d 1218 [2008];Judarl v Cycletech, Inc., 246 AD2d 736, 737 [1998]). The record establishes that onlyplaintiff's counsel appeared in court on the initial return date of the motion but that the courtthereafter granted defendants additional time in which to submit papers in opposition to themotion and adjourned the matter to a date subsequent thereto. The court stated that, in the eventthat defendant failed to appear on the adjourned return date, "the matter will be deemedsubmitted." Defendants failed to submit any opposing papers by the date specified by the courtand, although defendant appeared in court on the adjourned return date, he requested a secondadjournment at that time, in which to prepare opposing papers. The court determined thatdefendants already were in default at that time, inasmuch as they had failed to submit opposingpapers. "Having defaulted, . . . [*2]defendant[s]may not now challenge the merits of plaintiff['s] claims collaterally" (Porisini v Petricca,90 AD2d 949, 949 [1982]; see Constandinou v Constandinou [appeal No. 1], 265 AD2d890 [1999]). Finally, under the circumstances of this case, we reject the contention of defendantsthat the court abused or improvidently exercised its discretion in denying their second request foran adjournment in order to submit opposing papers (see generally Pitts v City of Buffalo,19 AD3d 1030 [2005]). Present—Smith, J.P., Peradotto, Green, Pine and Gorski, JJ.