| Wells Fargo Bank, N.A. v Cean Owens, LLC |
| 2013 NY Slip Op 06677 [110 AD3d 872] |
| October 16, 2013 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Respondent, v CeanOwens, LLC, et al., Appellants. |
—[*1] Rosner Nocera & Ragone, LLP, New York, N.Y. (Peter A. Ragone, Anthony L.Cotroneo, and Elaine Lau of counsel), for respondent.
In an action to recover on a promissory note, the defendants appeal from an order ofthe Supreme Court, Nassau County (Feinman, J.), dated March 23, 2012, which deniedtheir motion to vacate an order of the same court dated October 11, 2011, granting theplaintiff's unopposed motion for leave to enter judgment against the defendants in theprincipal sum of $78,133.33, upon their default in appearing or answering.
Ordered that the order dated March 23, 2012, is affirmed, with costs.
The Supreme Court properly denied that branch of the defendants' motion which waspursuant to CPLR 5015 (a) (1) to vacate an order dated October 11, 2011, granting theplaintiff's unopposed motion for leave to enter a default judgment. To vacate a default inappearing or answering pursuant to CPLR 5015 (a) (1), a defendant must demonstrate areasonable excuse for the default and a potentially meritorious defense to the action(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; CEO Bus. Brokers, Inc. vAlqabili, 105 AD3d 989, 989-990 [2013]; Bontempts v Aude Constr. Corp., 98 AD3d 1071, 1072[2012]; US Bank N.A. vStewart, 97 AD3d 740 [2012]). The defendants failed to demonstrate areasonable excuse for the default in answering the amended complaint. The defendants,who were represented by the principal attorney of the defendant Cean Owens, LLC,offered only the principal attorney's affirmation in support of her claim that she wassuffering from a medical condition which required surgery during the time within whichthe defendants had to answer, without any proof to substantiate her allegations(see CPLR 2106; LawOffs. of Neal D. Frishberg v Toman, 105 AD3d 712, 713 [2013]; Dayan v Darche, 96 AD3d708 [2012]; CynanSheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646 [2011];Mattera v Capric, 54 AD3d827, 828 [2008]). Furthermore, the vague, conclusory, and unsubstantiated excuseof law office failure proffered by a calendar clerk of the law firm was insufficient(see CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d at 990; Cantor v Flores, 94 AD3d936 [2012]; Wells FargoBank, N.A. v Cervini, 84 AD3d 789 [2011]). Moreover, the defendants'attempts to settle the action after the return date of the plaintiff's motion for leave to entera default judgment did not constitute a reasonable excuse for the defaults in answering oropposing the motion (see Bankof N.Y. Mellon v Izmirligil, 88 AD3d 930, 931 [2011]; Kouzios [*2]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]).
In addition, the defendants failed to demonstrate a potentially meritorious defense.The principal attorney's affidavit, which contained only conclusory assertions withoutany evidentiary support, was insufficient to establish a potentially meritorious defense tothe action (see GaralWholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041 [2011]; Kolajo vCity of New York, 248 AD2d 512, 513 [1998]; Lener v Club Med, 168AD2d 433, 435 [1990]).
The defendants' remaining contentions are without merit.
The Supreme Court therefore properly denied the defendants' motion to vacate theorder granting the plaintiff's unopposed motion for leave to enter a default judgment.Skelos, J.P., Dickerson, Lott and Austin, JJ., concur.