| Alterbaum v Shubert Org., Inc. |
| 2011 NY Slip Op 00339 [80 AD3d 635] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Irene Alterbaum, Appellant, v Shubert Organization, Inc.,et al., Respondents. |
—[*1] James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Rothenberg, J.), dated August 16, 2010, which granted thedefendants' motion to vacate an order of the same court dated March 4, 2010, granting herunopposed motion for leave to enter a judgment against the defendants upon their failure toappear or answer the complaint, and to compel her to accept their answer, nunc pro tunc.
Ordered that the order dated August 16, 2010, is reversed, on the facts and in the exercise ofdiscretion, with costs, and the defendants' motion to vacate the order dated March 4, 2010, and tocompel the plaintiff to accept their answer, nunc pro tunc, is denied.
To vacate an order entered upon their default in opposing the plaintiff's motion for leave toenter a default judgment, the defendants were required to demonstrate, inter alia, a reasonableexcuse for their default in appearing or answering the complaint and a potentially meritoriousdefense to the action (see CPLR 5015 [a] [1]; Abdul v Hirschfield, 71 AD3d 707 [2010]; Bekker v Fleischman, 35 AD3d334 [2006]; Epps v LaSalle Bus, 271 AD2d 400 [2000]). The defendants failed toproffer any explanation for their failure to oppose either of the plaintiff's two motions for leave toenter judgment upon their default, one in October 2009, and the second in December 2009, bothof which were served upon them (see Epps v LaSalle Bus, 271 AD2d 400 [2000]). Thedefendants' claim, which was improperly presented for the first time in a reply affidavit, that theirexecutive assistant did not recall receiving the two motions, did not overcome the presumption ofproper mailing created by the affidavits of service (see Kihl v Pfeffer, 94 NY2d 118, 122[1999]; Engel v Lichterman, 62 NY2d 943 [1984]; Mei Yun Li v Qing He Xu, 38 AD3d 731 [2007]; Terlizzese v Robinson's Custom Serv.,Inc., 25 AD3d 547, 548 [2006]). Furthermore, the defendants did not offer a reasonableexplanation for their inaction between December 2009 and May 2010 when they moved to vacatethe order dated March 4, 2010. Under the circumstances, the defendants' pattern of willfulneglect and default should not have been excused (see Bekker v Fleischman, 35 AD3d 334 [2006]; Edwards v Feliz, 28 AD3d 512,513 [2006]; Gainey v Anorzej, 25AD3d 650, 651 [2006]; Roussodimou v Zafiriadis, 238 AD2d 568, 568 [1997]). Inview of the lack of a reasonable excuse, it is unnecessary to consider whether the defendantssufficiently [*2]demonstrated the existence of a potentiallymeritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43AD3d 1143, 1144 [2007]; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431[2005]).
Contrary to the defendants' contention, the plaintiff's affidavit set forth enough facts to enablethe Supreme Court to determine that the plaintiff alleged a viable cause of action (seeWoodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Neuman v Zurich N. Am., 36 AD3d601, 602 [2007]).
Accordingly, the defendants' motion to vacate the order dated March 4, 2010, and to compelthe plaintiff to accept their answer, nunc pro tunc, should have been denied. Rivera, J.P., Florio,Dickerson, Hall and Roman, JJ., concur.