| Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC |
| 2012 NY Slip Op 04231 [95 AD3d 789] |
| May 31, 2012 |
| Appellate Division, First Department |
| Galaxy General Contracting Corp., Appellant, v 2201 7thAvenue Realty LLC, Respondent, et al., Defendants. |
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Order, Supreme Court, New York County (Carol Edmead, J.), entered March 28, 2011,which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for defaultjudgment against defendant 2201 7th Avenue Realty LLC, unanimously reversed, on the law andthe facts, without costs, and plaintiff's motion for the entry of default judgment granted in itsentirety. The Clerk is directed to enter judgment accordingly.
It is uncontraverted that service of process was effected on defendant 2201 7th AvenueRealty LLC by delivery of the summons and complaint to the Secretary of State's office(Business Corporation Law § 306), and that a courtesy copy was forwarded to defendant'sprior counsel. In order to avoid the entry of default judgment upon its failure to submit a timelyanswer, defendant was required to come forward with a reasonable excuse for its default and todemonstrate a meritorious defense to the action (Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]; see Mutual Mar. Off., Inc. v Joy Constr.Corp., 39 AD3d 417, 419 [2007]). Under certain circumstances, law office failure mayconstitute a reasonable excuse, as required to avoid or vacate default judgment (39 AD3d at 419).However, claims of law office failure which are "conclusory and unsubstantiated" cannot excusedefault (Wells Fargo Bank, 84 AD3d at 789; Pichardo-Garcia v Josephine's Spa Corp., 91 AD3d 413 [2012]). Ifit is shown that a party has failed to proffer an acceptable excuse for its default, then it becomesunnecessary to determine whether a meritorious defense exists (Wells Fargo Bank, 84AD3d at 790; see M.R. v 2526Valentine LLC, 58 AD3d 530, 531-532 [2009]).
In seeking to avoid the entry of default judgment, defendant claimed law office failure, butits newly-retained counsel attested that he could not answer for prior counsel's failure to submit atimely answer, as prior counsel had not responded to inquiries about plaintiff's complaint.Accordingly, current counsel could only speculate as to why no timely answer was submitted.Defendant's president could provide no additional insight, averring only that while he [*2]did not recall receiving personal service of the complaint, it was hispractice to forward all legal papers to prior counsel. Defendant's claim of law office failure beingperfunctory and unsubstantiated, it was insufficient to avoid the entry of default judgment.Concur—Tom, J.P., Andrias, Saxe, Moskowitz and Acosta, JJ.