| Ateres Hasofrim, Inc. v Kralik |
| 2010 NY Slip Op 08880 [78 AD3d 1091] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Ateres Hasofrim, Inc., Respondent, v James F. Kralik et al.,Defendants, and Galaxy Assets Corp., Appellant. |
—[*1] Feerick Lynch MacCartney PLLC, South Nyack, N.Y. (Donald J. Feerick, Jr., of counsel),for respondent.
In an action to recover damages for wrongful eviction, the defendant Galaxy Assets Corp.appeals from a judgment of the Supreme Court, Rockland County (Berliner, J.), entered October16, 2007, which, upon an order of the same court dated August 7, 2007, denying its motion,made jointly with the defendant Alan Fattal, inter alia, to vacate its default in answering thecomplaint, is in favor of the plaintiff and against it in the principal sum of $586,455.96.
Ordered that the judgment is affirmed, with costs.
In order to vacate its default in answering the complaint, the defendant Galaxy Assets Corp.(hereinafter the appellant) was required to demonstrate a reasonable excuse for its failure to servean answer and a potentially meritorious defense (see CPLR 5015 [a] [1]; ForwardDoor of N.Y., Inc. v Forlader, 41 AD3d 535 [2007]; Piton v Cribb, 38 AD3d 741[2007]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]). What constitutes areasonable excuse lies within the trial court's discretion (see Santiago v New York CityHealth & Hosps. Corp., 10 AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238AD2d 568, 569 [1997]; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207AD2d 526, 527 [1994]).
Here, the record supports the Supreme Court's determination that the appellant failed to offera reasonable excuse for its default. The excuse, that it believed it was being defended byattorneys that had handled an earlier related holdover proceeding, is unavailing in the absence ofevidence that the attorneys were ever actually retained for this matter, and where the evidenceinstead indicates that the attorneys had not been retained (see Sobel v Village ofScarsdale, 255 AD2d 500 [1998]). We therefore need not reach the issue of whether theappellant proffered a potentially meritorious defense to the action. Fisher, J.P., Dillon, Balkin,Chambers and Sgroi, JJ., concur.