| Carillon Nursing & Rehabilitation Ctr., LLP vFox |
| 2014 NY Slip Op 04726 [118 AD3d 933] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Carillon Nursing and Rehabilitation Center, LLP,Respondent, v George Fox et al., Appellants. |
Richard A. Kraslow, P.C., Melville, N.Y., for appellants.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Eininger, LLP,Lake Success, N.Y. (Jordan A. Meisner of counsel), for respondent.
In an action, inter alia, to recover damages for fraud and breach of contract, thedefendants appeal from an order of the Supreme Court, Suffolk County (Asher, J.), datedDecember 19, 2012, which denied their motion pursuant to CPLR 5015 (a) to vacate ajudgment of the same court entered March 29, 2012, upon an order of the same courtdated October 4, 2011, granting the plaintiff's unopposed motion for leave to enter adefault judgment, in favor of the plaintiff and against them in the principal sum of$52,458.96.
Ordered that the order dated December 19, 2012, is affirmed, with costs.
In a so-ordered stipulation dated February 22, 2011, the Supreme Court directed thedefendants to provide full and complete responses to the plaintiff's discovery demands byMarch 22, 2011, or the answer would be stricken. The defendants failed to comply withthat stipulation, and the plaintiff moved for the entry of a default judgment, contendingthat the answer had been stricken pursuant to the stipulation. After granting thedefendants' numerous requests to adjourn the return date of the motion, the motion wassubmitted without opposition, and the Supreme Court, in an order dated October 4, 2011,granted the motion and directed the plaintiff to submit proof of damages by affidavit.The Supreme Court entered a judgment on March 29, 2012, upon the plaintiff'ssubmissions of proof of damages, in favor of the plaintiff and against the defendants inthe principal sum of $52,458.96.
To vacate the judgment entered upon their failure to oppose the plaintiff's motion forthe entry of a default judgment, the defendants were required to demonstrate a reasonableexcuse for their default and a potentially meritorious defense to the motion (see Oller v Liberty Lines Tr.,Inc., 111 AD3d 903, 904 [2013]; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662[2013]; Gross v Johnson,102 AD3d 921, 922 [2013]). The defendants' bare allegations of law office failurebased upon their prior counsel's unspecified negligent acts, errors, and omissions doesnot constitute a reasonable excuse for their default (see Vardaros v Zapas, 105 AD3d 1037, 1038 [2013]; Bazoyah v Herschitz, 79 AD3d1081, 1082 [2010]; Kolajo v City of New York, 248 AD2d 512 [1998]).Furthermore, where, as here, there is a pattern [*2]ofwillful default and neglect, the negligence of the attorney is properly imputed to theclient (see Santiago vSantana, 54 AD3d 929, 930 [2008]; Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d790, 791 [2006]; Edwards vFeliz, 28 AD3d 512 [2006]; Roussodimou v Zafiriadis, 238 AD2d 568,569 [1997]).
Moreover, to successfully oppose the plaintiff's motion for the entry of a defaultjudgment, the defendants were required to demonstrate a reasonable excuse for theirfailure to comply with the stipulation, which functioned as a conditional order ofpreclusion, and the existence of a potentially meritorious defense to the action (see Okumus v Living Room SteakHouse, Inc., 112 AD3d 799 [2013]; Kirkland v Fayne, 78 AD3d 660 [2010]; Siltan v City ofNew York, 300 AD2d 298 [2002]). The defendants' bare allegations of neglect bytheir prior counsel were insufficient to excuse the failure over a period of 22 months aftera preliminary conference order was issued to comply with court-ordered discovery (see Santiago v New York CityHealth & Hosps. Corp., 10 AD3d 393, 394 [2004]; Kolajo v City ofNew York, 248 AD2d 512 [1998]). In addition, the record is devoid of any evidencetending to show the existence of a potentially meritorious defense to the action (see Beneficial Homeowner Serv.Corp. v Girault, 60 AD3d 984, 985 [2009]; Green Point Sav. Bank v 794Utica Ave. Realty Corp., 242 AD2d 602, 602-603 [1997]; Reilly-Whiteman, Inc.v Cherry Hill Textiles, 191 AD2d 486 [1993]). Accordingly, the defendants' motionto vacate the default judgment was properly denied.
The defendants' remaining contentions, which are based upon new factualallegations, are improperly raised for the first time on appeal and, accordingly, are notproperly before this Court (seeChusid v Silvera, 110 AD3d 659, 660 [2013]; Matter of Klass v City of NewYork, 103 AD3d 800, 802 [2013]; Provident Bank v Giannasca, 55 AD3d 812 [2008]).Rivera, J.P., Dickerson, Chambers, Hinds-Radix and Maltese, JJ., concur.