| JMP Pizza, LLC v 34th St. Pizza, LLC |
| 2013 NY Slip Op 01378 [104 AD3d 648] |
| March 6, 2013 |
| Appellate Division, Second Department |
| JMP Pizza, LLC, Respondent, v 34th Street Pizza,LLC, et al., Appellants. |
—[*1] Dubi Bellantone, P.C., Dix Hills, N.Y. (Gregory D. Bellantone of counsel), forrespondent.
In an action, inter alia, to recover on a promissory note, the defendants appeal froman order of the Supreme Court, Suffolk County (Whelan, J.), dated September 4, 2012,which denied their motion, in effect, pursuant to CPLR 5015 (a) to vacate their default inappearing or answering the complaint.
Ordered that the order is affirmed, with costs.
The defendants previously moved, inter alia, in effect, pursuant to CPLR 5015 (a) tovacate their default in appearing or answering the complaint, citing law office failure astheir reasonable excuse (see CPLR 2005), and opposed the plaintiff's crossmotion for leave to enter a default judgment against them on the issue of liability. TheSupreme Court denied the defendants' motion and granted the plaintiff's cross motion.Thereafter, the defendants again moved, in effect, pursuant to CPLR 5015 (a) to vacatetheir default in appearing or answering the complaint, citing law office failure as theirreasonable excuse. The Supreme Court properly denied the defendants' subsequentmotion, in which they did not seek leave to renew or reargue, on the ground that thedefendants were precluded from making a motion to vacate their default on the sameground raised in their prior motion (see 47 Thames Realty, LLC v Robinson, 85 AD3d 851,852 [2011]; New York StateHigher Educ. Servs. Corp. v Adeniyi, 72 AD3d 1387 [2010]; Bianco vDougherty, 54 AD2d 681 [1976]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ.,concur.