| Needleman v Tornheim |
| 2013 NY Slip Op 03071 [106 AD3d 707] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Scott Needleman et al., Appellants, et al.,Plaintiff, v Chaim Tornheim et al., Defendants, and Yossi Alaev,Respondent. |
—[*1] Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter Gordon of counsel), forrespondent.
In an action, inter alia, to recover damages for fraud and conversion and to recovermoney had and received, the plaintiffs Scott Needleman and Dorit Z. Needleman appealfrom an order of the Supreme Court, Kings County (Vaughan, J.), dated June 13, 2012,which (1) granted the motion of the defendant Yossi Alaev (a) to vacate a judgment ofthe same court entered September 13, 2011, which, upon an order of the same courtdated June 28, 2011, granting their motion for summary judgment against the defendantYossi Alaev on the fifth cause of action upon the default of the defendant Yossi Alaev inappearing, was in favor of them and against the defendant Yossi Alaev in the total sumof $101,732.50, (b), in effect, to vacate the order dated June 28, 2011, and (c) to vacate arestraining order on the bank account of the defendant Yossi Alaev, (2) denied theirmotion for summary judgment on the fifth cause of action, and (3) denied their crossmotion to vacate a temporary restraining order in an order to show cause of the samecourt dated November 10, 2011, vacating the restraining order on the bank account of thedefendant Yossi Alaev pending the determination of his motion to vacate, and restrainingthem from taking any action to enforce the judgment entered September 13, 2011,against the defendant Yossi Alaev pending the determination of his motion to vacate.
Ordered that the appeal from so much of the order as denied the plaintiffs' crossmotion is dismissed as academic; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
In moving pursuant to CPLR 5015 (a) (1) to vacate a default in appearing, a party isrequired to demonstrate both a reasonable excuse for the default and a potentiallymeritorious defense to the motion (see Walker v Mohammed, 90 AD3d 1034 [2011]; Swensen v MV Transp., Inc.,89 AD3d 924, 925 [2011]). A motion to vacate is addressed to the sound discretionof the court, which should [*2]also consider potentialprejudice to the opposing party, whether the default was willful or evinced an intent toabandon the litigation, and whether vacating the default would serve the public policy ofresolving actions on their merits (see Toll Bros., Inc. v Dorsch, 91 AD3d 755, 755-756[2012]; Dimitriadis v VisitingNurse Serv. of N.Y., 84 AD3d 1150, 1150-1151 [2011]).
Here, the defendant Yossi Alaev demonstrated a reasonable excuse for his default inappearing by submitting a detailed and credible explanation of his attorney's law officefailure (see Kohn v Kohn,86 AD3d 630 [2011]). Moreover, his evidentiary submissions established apotentially meritorious defense to the motion, and additionally raised triable issues of factin opposition to the plaintiffs' underlying motion for summary judgment. Accordingly,the Supreme Court providently exercised its discretion in granting the motion to vacatethe default and properly denied the underlying motion by the plaintiffs Scott Needlemanand Dorit Z. Needleman for summary judgment on the fifth cause of action.
The appeal from so much of the order as denied the cross motion to vacate thetemporary relief granted to Alaev in an order to show cause must be dismissed asacademic, since that temporary relief has expired (see Matter of DeCintio v Village of Tuckahoe, 100 AD3d887 [2012]). Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.