| Wood v Tuttle |
| 2013 NY Slip Op 03886 [106 AD3d 1393] |
| May 30, 2013 |
| Appellate Division, Third Department |
| Robert J. Wood, Respondent, v James A. Tuttle et al.,Defendants, and Kenneth A. Warren, Appellant. |
—[*1] Scott C. Gottlieb, Binghamton (Matthew C. Hug, Troy, of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from an order of the Supreme Court (Lebous, J.), enteredApril 26, 2011 in Broome County, which, upon an inquest, awarded certain damages toplaintiff, and (2) from the judgment entered thereon.
Plaintiff commenced this action in May 2008 alleging that he had suffered seriousinjuries during an altercation at a bar with defendant James A. Tuttle, who was employedas the bar's bouncer. Defendant Kenneth A. Warren (hereinafter defendant) is theprincipal of defendant Kando Corporation, which operated the bar, and he was presentand allegedly had a role in the incident. After submitting an answer, defendants neglectedto supply any responses to plaintiff's discovery demands, including ignoring all thedeadlines for discovery set by Supreme Court in an April 2009 order. Faced withdefendants' continued nonresponse to discovery demands and noncompliance with thecourt order, plaintiff moved for partial summary judgment on the issue of liability. In anorder entered October 27, 2009, Supreme Court conditionally granted the motion, givingdefendants until November 20, 2009 to respond. Defendants, however, did not respond.Supreme Court thus scheduled an inquest on damages for June 2010. At the hearing,defendant appeared with new counsel and the court afforded him and the otherdefendants additional time to attempt to resolve the case. Defendants reportedly made nosuch [*2]effort.
In August 2010, defendant moved to set aside the partial summary judgment orderthat had been granted upon default. Supreme Court denied the request to vacate theorder, but granted defendant's request to hear further evidence regarding plaintiff'sdamages. After hearing such proof, Supreme Court found damages of $15,000 for pastpain and suffering, $25,000 for future pain and suffering, $6,276.90 for lost wages and$5,253.55 for medical expenses. Defendant appeals.
Defendant contends that Supreme Court erred in not granting his motion to vacatethe partial summary judgment order that resulted from the default. Although resolvingcases on the merits is preferred (see State of New York v Bayramov, 98 AD3d 811, 812[2012]), a party seeking to vacate an order entered because of a default generally mustshow, at a minimum, a reasonable excuse and a meritorious position (see Matter of County of Albany[Bowles], 91 AD3d 1132, 1133 [2012]; Fishman v Beach, 246 AD2d779, 780 [1998]). The decision whether to vacate a default is within the trial court'sdiscretion and typically will not be disturbed on appeal absent an abuse of that discretion(see Aaron v Carter, Conboy,Case, Blackmore, Napierski & Maloney, P.C., 12 AD3d 753, 754-755 [2004];Fishman v Beach, 246 AD2d at 780; Hartwich v Young, 149 AD2d 769,770 [1989]).
Defendant offered as an excuse that the counsel he initially retained to represent himfailed to properly protect his interests. However, the record contains only generalassertions regarding such counsel's purported conduct and conclusory contentions as todefendant's efforts over the lengthy period of time to keep apprised of the matter (seeFishman v Beach, 246 AD2d at 780; Hartwich v Young, 149 AD2d at 770;see also HSBC Bank USA N.A.v Wider, 101 AD3d 683, 683 [2012]; Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95AD3d 789, 790 [2012]). The absence of a reasonable excuse negates the necessity ofconsidering whether defendant had a meritorious defense (see Nilt, Inc. v New York StateDept. of Motor Vehicles, 35 AD3d 937, 938 [2006]). In light of the repeatedfailure to, among other things, adhere to court orders and the absence of a reasonableexcuse for such failures, Supreme Court did not abuse its discretion in denyingdefendant's motion to vacate the order entered following the default (see M & C Bros., Inc. vTorum, 101 AD3d 1329, 1330 [2012], appeal dismissed 21 NY3d 898[2013]; Hartwich v Young, 149 AD2d at 770).
Defendant's remaining argument was not properly preserved for review.
McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order and judgment areaffirmed, with costs.