| Karalis v New Dimensions HR, Inc. |
| 2013 NY Slip Op 02222 [105 AD3d 707] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Elma Karalis et al., Appellants, v New DimensionsHR, Inc., et al., Respondents, et al., Defendants. |
—[*1] Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, New York, N.Y.(Thomas Aljian of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, SuffolkCounty (Pastoressa, J.), dated February 3, 2011, as denied their motion pursuant to CPLR3215 for leave to enter judgment on the issue of liability against the defendants NewDimensions HR, Inc., and Ingraham Contracting, upon their failure to appear or answerthe complaint, and granted the cross motion of the defendants New Dimensions HR, Inc.,and Ingraham Contracting to vacate their default in appearing or answering the complaintand for leave to serve a late answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,the plaintiffs' motion pursuant to CPLR 3215 for leave to enter judgment on the issue ofliability against the defendants New Dimensions HR, Inc., and Ingraham Contracting,upon their failure to appear or answer the complaint, is granted, and the cross motion ofthe defendants New Dimensions HR, Inc., and Ingraham Contracting to vacate theirdefault in appearing or answering the complaint and for leave to serve a late answer isdenied.
The plaintiffs demonstrated their entitlement to judgment on the issue of liabilityagainst the defendants New Dimensions HR, Inc., and Ingraham Contracting (hereinaftertogether the New Dimensions defendants) by submitting proof of service of the summonsand complaint, proof of the facts constituting their claim, and proof of those defendants'failure to answer or appear (see CPLR 3215 [f]; Wassertheil v Elburg, LLC, 94AD3d 753, 753 [2012]; C&H Import & Export, Inc. v MNA Global, Inc., 79 AD3d784, 785 [2010]).
To successfully oppose the plaintiffs' motion for leave to enter a default judgmentagainst them, the New Dimensions defendants were required to demonstrate a reasonableexcuse for their default and the existence of a potentially meritorious defense (seeCPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67NY2d 138, 141 [1986]; Wassertheil v Elburg, LLC, 94 AD3d at 753; Bank of N.Y. Mellon vIzmirligil, 88 AD3d 930, 931 [2011]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 789[2011]). While the New Dimensions defendants' attorney may have engaged insettlement negotiations with the plaintiffs' attorney for a few months after the NewDimensions defendants' [*2]time to answer had expired,those defendants failed to substantiate that the further lengthy delay in seeking leave toserve a late answer, even after the plaintiffs indicated their intent to move for a defaultjudgment, was due to settlement negotiations (see Bank of N.Y. Mellon vIzmirligil, 88 AD3d at 931; Kouzios v Dery, 57 AD3d 949, 950 [2008]; Antoine v Bee, 26 AD3d306, 306 [2006]; MajesticClothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 518 [2005]). Furthermore,the New Dimensions defendants submitted only an answer verified by, and theaffirmation of, their attorney, and since the attorney had no personal knowledge of thefacts, those documents were insufficient to demonstrate the existence of a potentiallymeritorious defense (see Ogmanv Mastrantonio Catering, Inc., 82 AD3d 852, 853 [2011]; Gross v Kail, 70 AD3d997, 998 [2010]; Juseinoskiv Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2005]).
Accordingly, the plaintiffs' motion for leave to enter a default judgment on the issueof liability against the New Dimensions defendants should have been granted, and thecross motion of those defendants to vacate their default in appearing or answering thecomplaint and for leave to serve a late answer should have been denied. Rivera, J.P.,Dickerson, Leventhal and Lott, JJ., concur.