| J & J Alarcon Realty Corp. v Plantains Rest., Inc. |
| 2014 NY Slip Op 08812 [123 AD3d 886] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| J& J Alarcon Realty Corp.,Respondents, v Plantains Restaurant, Inc., Doing Business as Green Plantains, etal., Defendants, and Jimmy Nguyen et al., Appellants. |
Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Anthony W.Cummings of counsel), for appellants.
RZG Law PLLC, New York, N.Y. (R. Zachary Gelber of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of a commercial lease, thedefendants Jimmy Nguyen and Kim Nguyen appeal from a judgment of the SupremeCourt, Queens County (Siegal, J.), entered January 22, 2013, which, upon an order of thesame court entered June 14, 2012, denying their motion, denominated as one for leave torenew, but which was, in actuality, to vacate a prior order of the same court dated August23, 2011, granting the plaintiffs' motion for summary judgment on the complaint insofaras asserted against them upon their failure to oppose that motion, and thereuon to denythe plaintiffs' motion for summary judgment on the complaint insofar as asserted againstthem, is in favor of the plaintiffs and against them in the total sum of $238,679.94.
Ordered that the judgment is reversed, on the law and in the exercise of discretion,with costs, and the motion of the defendants Jimmy Nguyen and Kim Nguyen,denominated as one for leave to renew, but which was, in actuality, to vacate the orderdated August 23, 2011, and thereupon deny the plaintiffs' motion for summary judgmenton the complaint insofar as asserted against them, is granted, and the order entered June14, 2012, is modified accordingly.
The plaintiffs commenced this action, inter alia, to recover damages for breach of acommercial lease. The plaintiffs moved for summary judgment on the complaint insofaras asserted against the defendants Jimmy Nguyen and Kim Nguyen (hereinafter togetherthe Nguyens). The Nguyens defaulted in opposing the plaintiffs' motion and, in an orderdated August 23, 2011, the Supreme Court granted the plaintiffs' motion for summaryjudgment upon the Nguyens' default.
The Nguyens subsequently made a motion, denominated as one for leave to renew,but which was, in actuality, to vacate the order dated August 23, 2011, and thereupondeny the plaintiffs' motion for summary judgment. In an order entered June 14, 2012, theSupreme Court denied the Nguyens' motion. The court thereafter entered judgment infavor of the plaintiffs and against the Nguyens in the total sum of $238,679.94. TheNguyens appeal from the judgment.
The appeal from the judgment brings up for review the order entered June 14, 2012(see CPLR 5501 [a] [1]; Roldan v Astoria Generating Co., L.P., 90 AD3d 1014,1015 [2011]). We conclude [*2]that the Supreme Courterred in denying the Nguyens' motion, and that the judgment must therefore bereversed.
"A party seeking to vacate an order entered upon his or her failure to oppose amotion is required to demonstrate, through the submission of supporting facts inevidentiary form, both a reasonable excuse for the default and the existence of apotentially meritorious opposition to the motion" (Bhuiyan v New York City Health & Hosps. Corp., 120AD3d 1284, 1284 [2014]; see CPLR 5015 [a] [1]; Santos v Penske Truck LeasingCo., 105 AD3d 1029, 1029 [2013]). "It is settled that the decision to relieve aparty from its default rests in the sound discretion of the motion court" (Holt Constr.Corp. v J & R Music World, 294 AD2d 540, 540 [2002]).
The Supreme Court improvidently exercised its discretion in denying that branch ofthe Nguyens' motion which was to vacate the order dated August 23, 2011, made upontheir default. The Nguyens demonstrated a reasonable excuse for their failure to opposethe plaintiffs' summary judgment motion and a potentially meritorious opposition to thatmotion (see CPLR 5015 [a] [1]; Thalle Indus., Inc. v Holubar, 121 AD3d 671 [2014];Santos v Penske Truck Leasing Co., 105 AD3d at 1029).
Since the Supreme Court should have granted that branch of the Nguyens' motionwhich was to vacate the order dated August 23, 2011, it should have considered themerits of their opposition to the plaintiffs' summary judgment motion, and denied thatsummary judgment motion. In this regard, although the plaintiffs established, primafacie, their entitlement to judgment as a matter of law on the complaint insofar asasserted against the Nguyens through the submissions made in connection with theirsummary judgment motion (seeCommissioners of State Ins. Fund v Staulcup, 95 AD3d 1259 [2012]), thesubmissions tendered by the Nguyens in support of their motion to vacate were sufficientto raise triable issues of fact as to whether they may be held personally liable on thesubject lease so as to warrant the denial of the plaintiffs' summary judgment motion (see Sunquest Enters., Inc. vZar, 115 AD3d 486 [2014]; Commissioners of State Ins. Fund vStaulcup, 95 AD3d at 1261;Spring Val. Improvements, LLC v Abajian, 40 AD3d 619 [2007]; cf.Clinton Invs. Co., II v Watkins, 146 AD2d 861 [1989]; Brandes Meat Corp. vCromer, 146 AD2d 666 [1989]; Imero Fiorentino Assoc. v Green, 85 AD2d419 [1982]). Accordingly, the Supreme Court, upon vacatur of the order dated August23, 2011, should have denied the plaintiffs' motion for summary judgment on thecomplaint insofar as asserted against the Nguyens. Mastro, J.P., Roman, Miller andMaltese, JJ., concur.