Bryant v New York City Hous. Auth.

2010 NY Slip Op 00383 [69 AD3d 488]

January 19, 2010

Appellate Division, First Department

As corrected through Wednesday, March 10, 2010

James Lamont Bryant, Respondent, v New York CityHousing Authority, Appellant.

—[*1]Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci ofcounsel), for appellant.

Profeta & Eisenstein, New York (Fred R. Profeta, Jr. of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 8, 2009, whichdenied defendant's motion to vacate an order granting, on default, plaintiff's motion to strikedefendant's answer, unanimously affirmed, without costs.

To vacate its default in opposing plaintiff's motion pursuant to CPLR 3126 to strike itsanswer, defendant was required to demonstrate both a reasonable excuse for the default and ameritorious defense (see CPLR 5015 [a]; QRT Assoc., Inc. v Mouzouris, 40 AD3d 326 [2007]; Mutual Mar. Off., Inc. v Joy Constr.Corp., 39 AD3d 417, 419 [2007]). While a default resulting from law office failure maybe excused (CPLR 2005), defendant's bare denial of receipt of the motion papers, and of asubsequent letter from plaintiff's counsel referring to the pending motion, was insufficient torebut the proof that the motion papers were properly mailed and the presumption of receiptarising from that proof (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Grieco v Walker, 8 AD3d 66[2004]). Since defendant did not submit an affidavit of merit or argue that the depositiontestimony in the record supported a valid defense to this slip and fall action based on lack ofnotice of a dangerous condition, the motion court properly determined that defendant had notshown a meritorious defense to the complaint (see Fidelity & Deposit Co. of Md. v Andersen& Co., 60 NY2d 693, 694-695 [1983]).

Defendant's pattern of noncompliance with court-ordered disclosure over a period of over[*2]two years created an inference of willful and contumaciousconduct warranting the sanction of striking the answer (see Figiel v Met Food, 48 AD3d 330 [2008]; Brewster v FTM Servo, Corp., 44AD3d 351 [2007]). Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse andManzanet-Daniels, JJ.