| Lambert v Schreiber |
| 2010 NY Slip Op 00650 [69 AD3d 904] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Donald Lambert, Appellant, v Laurence E. Schreiber,Respondent. |
—[*1] Andrew M. Jacobs, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of a contract for the sale of realproperty and for specific performance of that contract, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated January14, 2008, as, upon reargument, adhered to its original determination in an order dated October11, 2007, granting the defendant's motion to vacate a judgment entered April 25, 2007, upon thedefendant's default, which was in favor of the plaintiff and against the defendant in the principalsum of $844,700.
Ordered that the order dated January 14, 2008, is reversed insofar as appealed from, on thelaw, on the facts, and in the exercise of discretion, with costs, and, upon reargument, the orderdated October 11, 2007, is vacated, and the defendant's motion to vacate the judgment is denied.
In October 2006 the plaintiff moved, in effect, for summary judgment awarding damages forbreach of contract and, thereupon, for a judgment awarding damages in lieu of a prior judgmentin his favor on the cause of action for specific performance. At a court appearance on November30, 2006, the return date of the motion was adjourned to January 18, 2007. The Supreme Court,however, having erroneously marked the motion "submitted" on November 30, 2006, granted themotion as unopposed on February 1, 2007, and a default judgment in the principal sum of$844,700 was entered against the defendant on April 25, 2007. The defendant subsequentlymoved to vacate the default judgment, and, based on its mistake in marking the plaintiff'sunopposed motion "submitted" on November 30, 2006, the court granted the motion. Theplaintiff then moved for leave to reargue the motion. However, upon reargument, the SupremeCourt adhered to its original determination granting the defendant's motion to vacate the defaultjudgment.
To prevail on his motion to vacate the judgment entered upon his default, the defendant wasrequired to demonstrate a reasonable excuse for the default and a meritorious opposition to theplaintiff's motion (see CPLR 5015 [a] [1]; Pemberton v Fuchs, 57 AD3d 863 [2008]; Raciti v Sands Point Nursing Home,54 AD3d 1014, 1015 [2008]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]).The defendant, maintaining that he served and filed papers opposing the plaintiff's [*2]motion in December 2006 and, thus, that no default occurred, didnot attempt to demonstrate a reasonable excuse for the default. The record does not support thedefendant's assertion that he did not default in opposing the plaintiff's motion. The plaintiff'sattorney disputed the assertion of the defendant's attorney that opposition papers were served onthe plaintiff, stating in his own affirmation that he never received any such papers, and theSupreme Court acknowledged on the record that there was no indication in the court's file orcomputer records that the defendant had ever filed papers in opposition to the plaintiff's motion.The defendant not only failed to produce an affidavit of service or any other proof establishingthat he served or filed opposition papers, but failed to produce the opposition papers themselves.Significantly, the order granting the plaintiff's motion as unopposed was dated February 1, 2007,after the adjourned return date of January 18, 2007.
Thus, since there was a default and the defendant offered no excuse therefor, the SupremeCourt improvidently exercised its discretion in vacating the default judgment entered on April25, 2007 (see Ayiku v Viteritti, 54AD3d 789 [2008]; Santiago v NewYork City Health & Hosps. Corp., 10 AD3d 393 [2004]). Accordingly, uponreargument, the Supreme Court should have denied the defendant's motion to vacate the defaultjudgment. Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.