| Dimopoulos v Caposella |
| 2014 NY Slip Op 04164 [118 AD3d 739] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| James Dimopoulos et al., Appellants, v RonaldCaposella et al., Respondents. |
Andrew D. Brodnick, Mount Kisco, N.Y., for appellants.
Hass & Gottlieb, Scarsdale, N.Y. (Lawrence M. Gottlieb of counsel), forrespondents.
In an action to recover damages for breach of contract and for an accounting, theplaintiffs appeal from an order of the Supreme Court, Westchester County (O.Bellantoni, J.), entered March 12, 2013, which granted the defendants' motion (a)pursuant to CPLR 5015 (a) (1) to vacate a judgment of the same court (Colabella, J.),dated April 12, 2012, entered upon the defendants' failure to answer or appear, (b) ineffect, to vacate so much of an order of the same court dated January 29, 2013, asgranted that branch of their unopposed motion which was to hold the defendant RonaldCaposella in contempt of court, and (c) for leave to serve a late answer.
Ordered that the order entered March 12, 2013, is reversed, on the facts and in theexercise of discretion, with costs, and the defendants' motion (a) to vacate the judgmentdated April 12, 2012, (b) in effect, to vacate so much of the order dated January 29,2013, as granted that branch of the plaintiffs' unopposed motion which was to hold thedefendant Ronald Caposella in contempt of court, and (c) for leave to serve a lateanswer, is denied.
A defendant seeking to vacate a judgment entered upon his or her default inappearing or answering the complaint and for leave to serve a late answer mustdemonstrate both a reasonable excuse for the default and the existence of a potentiallymeritorious defense to the action (see CPLR 5015 [a] [1]; Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Chase Home Fin., LLC vMinott, 115 AD3d 634 [2014]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695,696 [2011]; Taddeo-Amendolav 970 Assets, LLC, 72 AD3d 677 [2010]). Here, the defendants failed todemonstrate a reasonable excuse for their default in appearing or answering thecomplaint. The affirmation of the defendants' former attorney, which alleged that he hadundergone three surgeries over a period of approximately 16 months after the defendantsretained his law firm, was insufficient, since it failed to include any medical proof tosubstantiate the allegations (seeWells Fargo Bank, N.A. v Cean Owens, LLC, 110 AD3d 872 [2013]; Dayan v Darche, 96 AD3d708 [2012]; Mattera vCapric, 54 AD3d 827, 828 [2008]; Borgia v Interboro Gen. Hosp., 90AD2d 531 [1982], affd 59 NY2d 802 [1983]). Furthermore, former counsel'smistaken belief that he did not need to answer the complaint on behalf of the defendantsbecause he was attempting to settle the action did not constitute a reasonable excuse (see Turko v [*2]Daffy's, Inc, 111 AD3d 615, 616 [2013]; WellsFargo Bank, N.A. v Cean Owens, LLC, 110 AD3d at 872; Karalis v New Dimensions HR,Inc., 105 AD3d 707, 708 [2013]; Community Preserv. Corp. v Bridgewater Condominiums, LLC,89 AD3d 784, 785 [2011]).
The defendants' further contentions that they did not know that they were in defaultin appearing or answering the complaint, and that they had relied upon therepresentations of their former counsel, do not constitute a reasonable excuse under thecircumstances of this case. The plaintiffs established that, on May 12, 2012, they servedthe defendant Ronald Caposella, the president of the defendant corporations, with a copyof the default judgment, along with a subpoena duces tecum and a notice pursuant toCPLR 5104 to hold him in contempt of court if he did not comply with the defaultjudgment. Caposella admitted that he received the subpoena and the notice to hold him incontempt, but claimed that he did not ascertain the presence of the default judgmentattached to the legal papers. Caposella's assertion that he had failed to comprehend thathe was in default was insufficient to excuse the nine-month delay between the time thathe received notice of the default judgment and the time that he moved to vacate thedefault (see Chase Home Fin.,LLC v Minott, 115 AD3d 634 [2014]; Stevens v Charles, 102 AD3d 763, 764 [2013]; U.S. Bank N.A. v Slavinski, 78AD3d 1167 [2010]; Dorrerv Berry, 37 AD3d 519, 520 [2007]). Moreover, Caposella was on notice for asubstantial period of time that the plaintiffs had been awarded a default judgment againstthe defendants, but he took no steps to vacate the judgment until after the plaintiffs hadobtained an order holding him in contempt of court for failing to comply with thesubpoena and after the plaintiffs had served a subpoena duces tecum upon a nonpartycorporation for the purpose of enforcing the judgment. Such conduct evinces anintentional default, which is not excusable (see Vardaros v Zapas, 105 AD3d 1037, 1038 [2013]; Desiderio v Devani, 24 AD3d495, 496 [2005]; WyckoffHgts. Med. Ctr. v Merchants Ins. Co. of N.H., 2 AD3d 841 [2003]; EretzFunding v Shalosh Assoc., 266 AD2d 184, 185 [1999]). In view of the lack of areasonable excuse, it is unnecessary to consider whether the defendants demonstrated theexistence of a potentially meritorious defense to the action (see Vardaros v Zapas,105 AD3d at 1038; Maida vLessing's Rest. Servs., Inc., 80 AD3d 732 [2011]; O'Donnell v Frangakis, 76AD3d 999 [2010]). Accordingly, those branches of the defendants' motion whichwere to vacate the default judgment dated April 12, 2012, and for leave to serve a lateanswer should have been denied.
Moreover, the defendants failed to demonstrate a reasonable excuse for their defaultin opposing the plaintiffs' motion (see Schenk v Staten Is. Univ. Hosp., 108 AD3d 661[2013]; Dokaj v Ruxton TowerLtd. Partnership, 91 AD3d 812, 813 [2012]). Accordingly, that branch of thedefendants' motion which was to vacate so much of the order dated January 29, 2013, asgranted that branch of the plaintiffs' motion which was to hold Caposella in contempt ofcourt should have been denied. Skelos, J.P., Leventhal, Cohen, LaSalle and Barros, JJ.,concur.