Yi Zhao v Liu

2016 NY Slip Op 01319 [136 AD3d 1025]

February 24, 2016

Appellate Division, Second Department

As corrected through Wednesday, March 23, 2016

[*1]

Yi Zhao, Respondent, v Dina Liu, Also Knownas Liu Dan, et al., Defendants, and VisionChina Media, Inc.,Appellant.

Arnold & Porter LLP, New York, NY (Charles G. Berry and Ian Jay ofcounsel), for appellant.

Dai & Associates, P.C., New York, NY (John O'Connell, Jacob Chen, andDawei Gongsun of counsel), for respondent.

In an action, inter alia, to recover damages for aiding and abetting fraud, thedefendant VisionChina Media, Inc., appeals from an order of the Supreme Court,Westchester County (Smith, J.), entered February 28, 2014, which denied, as untimely,its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a) and 327 (a).

Ordered that the order is affirmed, with costs.

This action seeks to recover damages from VisionChina Media, Inc. (hereinafterVisionChina), for aiding and abetting a fraud allegedly committed by the defendant DinaLiu, also known as Liu Dan. On or about August 26, 2013, the plaintiff servedVisionChina with the summons and complaint. VisionChina did not serve an answer.Instead, on December 24, 2013, VisionChina moved to dismiss the complaint insofar asasserted against it pursuant to CPLR 3211 (a) and 327 (a). The Supreme Court denied themotion. VisionChina appeals.

At the time of its motion, VisionChina was in default for failing to answer thecomplaint within the 30-day period for service of a responsive pleading (seeCPLR 320 [a]). VisionChina did not seek relief from its default or make any showing ofa reasonable excuse for its default. Under such circumstances, the Supreme Courtproperly declined to excuse VisionChina's default and denied the motion as untimely(see CPLR 3211 [e]; Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d624 [2010]).

The parties' remaining contentions need not be reached in light of our determination.Dillon, J.P., Cohen, Maltese and Barros, JJ., concur.