| Vardaros v Zapas |
| 2013 NY Slip Op 02740 [105 AD3d 1037] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Christopher Vardaros et al., Respondents, v JohnZapas, Appellant. |
—[*1] Borchert, Genovesi & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert ofcounsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certainreal property and to recover damages for unjust enrichment, the defendant appeals froman order of the Supreme Court, Queens County (Kitzes, J.), entered April 24, 2012,which denied his motion pursuant to CPLR 5015 (a) (1) to vacate a judgment of the samecourt entered July 8, 2011, which, upon an order of the same court entered June 15,2011, striking his answer upon his default in appearing at the trial, is in favor of theplaintiffs and against him in the principal sum of $655,276.58.
Ordered that the order entered April 24, 2012, is affirmed, with costs.
To vacate his default in appearing at the trial, the defendant was required todemonstrate both a reasonable excuse for the default and a potentially meritoriousdefense to the action (see CPLR 5015 [a] [1]; Walker v Mohammed, 90 AD3d 1034 [2011]; Casali v Cyran, 84 AD3d711 [2011]). While the court has discretion to accept law-office failure as areasonable excuse, "a pattern of willful default and neglect should not be excused" (Bazoyah v Herschitz, 79 AD3d1081, 1081 [2010] [internal quotation marks omitted]; see Pollock v Meltzer, 78AD3d 677 [2010]; Campbell-Jarvis v Alves, 68 AD3d 701 [2009];Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). The defendant's repeatedfailure to appear ready on the scheduled trial dates, and his failure to appear on the finaladjourned trial date even though he had been warned that no further adjournments wouldbe granted, demonstrates a pattern of willful default and neglect, which cannot beexcused by his bare allegation of law-office failure on the part of his prior attorney(see Bazoyah v Herschitz, 79 AD3d at 1082; Kolajo v City of New York,248 AD2d 512 [1998]). The defendant's further bare allegations of neglect by his priorattorney were insufficient to justify the more-than-seven-month delay in moving tovacate the default judgment (seeHeidari v First Advance Funding Corp., 55 AD3d 669, 670 [2008]; Ortega v Bisogno & Meyerson,38 AD3d 510, 511 [2007]; Canty v Gregory, 37 AD3d 508, 509 [2007]). Furthermore,the defendant was aware for a substantial period of time that the plaintiffs had beenawarded a default judgment against him, but he took no steps to vacate the judgmentuntil the plaintiffs moved to hold him in contempt of court for failing to comply with aninformation subpoena designed to enforce the judgment. Such conduct evidences anintentional default, which is not excusable (see Desiderio v Devani, 24 AD3d 495, 496 [2005]; [*2]Wyckoff Hgts. Med. Ctr. v Merchants Ins. Co. of N.H.,2 AD3d 841 [2003]; Eretz Funding v Shalosh Assoc., 266 AD2d 184, 185[1999]). In view of the lack of a reasonable excuse, it is unnecessary to consider whetherthe defendant demonstrated the existence of a potentially meritorious defense (see Maida v Lessing's Rest. Servs.,Inc., 80 AD3d 732 [2011]; O'Donnell v Frangakis, 76 AD3d 999 [2010]; Abdul v Hirschfield, 71 AD3d707, 708-709 [2010]).
We have not considered the affidavit of the defendant's prior attorney that wasimproperly submitted for the first time with the defendant's reply papers (see Sawyers v Troisi, 95 AD3d1293, 1294 [2012]; Matternv Hornell Brewing Co., Inc., 84 AD3d 1323, 1325 [2011]; Encarnacion v Smith, 70AD3d 628, 629 [2010]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.