| Cervini v Cisco Gen. Constr., Inc. |
| 2014 NY Slip Op 09096 [123 AD3d 1077] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Michael A. Cervini, Respondent, v CiscoGeneral Construction, Inc., Appellant. |
Gerald P. Gross, Cedarhurst, N.Y. (Elliot B. Pasik of counsel), for appellant.
Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), respondentpro se.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Queens County (Lane, J.), entered October 31, 2013, whichdenied those branches of its motion which were pursuant to CPLR 5015 (a) (1) to vacatea judgment of the same court entered March 28, 2013, upon its failure to appear oranswer the complaint, and to extend its time to answer the complaint and to have itsanswer deemed timely served nunc pro tunc.
Ordered that the order is affirmed, with costs.
"A defendant seeking to vacate a default in appearing or answering must demonstratea reasonable excuse for the default and a potentially meritorious defense to the action"(Wells Fargo Bank vMalave, 107 AD3d 880, 880-881 [2013]; see CPLR 5015 [a] [1]; Wells Fargo Bank, N.A. vHampton, 119 AD3d 856 [2014]). "The absence of a reasonable excuse for thedefault renders it unnecessary to determine whether the [movant] demonstrated theexistence of a potentially meritorious defense" (Citimortgage, Inc. v Bustamante, 107 AD3d 752, 753[2013]). Moreover, such a motion "is addressed to the sound discretion of the court" (Needleman v Tornheim, 106AD3d 707, 708 [2013]; seeMadison Acquisition Group, LLC v 7614 Fourth Real Estate Dev., LLC, 111 AD3d800, 800 [2013]; Jong IlLee v En Salto, 107 AD3d 950, 950 [2013]).
Here, the defendant failed to demonstrate a reasonable excuse for its default (see Abdelqader v Abdelqader,120 AD3d 1275 [2014]; Cavalry SPV I, LLC v Frenkel, 119 AD3d 724 [2014]; Chase Home Fin., LLC vMinott, 115 AD3d 634 [2014]; Kim v S&M Caterers, Inc., 112 AD3d 581 [2013]). Inview of the lack of a reasonable excuse, it is unnecessary to consider whether thedefendant sufficiently demonstrated the existence of a potentially meritorious defense(see Abdelqader v Abdelqader, 120 AD3d at 1275; Cavalry SPV I, LLC vFrenkel, 119 AD3d at 724).
Accordingly, the Supreme Court providently exercised its discretion in denying thosebranches of the defendant's motion which were pursuant to CPLR 5015 (a) (1) to vacatethe judgment and to extend its time to answer the complaint and have its answer deemedtimely served nunc pro tunc.
[*2] In light ofour determination, we need not consider the defendant's remaining contentions. Skelos,J.P., Dickerson, Austin and Maltese, JJ., concur.