| Buchakian v Kuriga |
| 2016 NY Slip Op 02633 [138 AD3d 711] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| Residuary Trust Under Last Will and Testament ofRobert Buchakian, by its Cotrustee, Lynn Pinajian Beylerian,Respondent, v Patricia A. Kuriga et al., Appellants. |
Mark A. Billhimer, Syosset, NY, for appellants.
Andrew D. Presberg, P.C., Islandia, NY (Kevin J. Foreman of counsel), forrespondent.
In an action to recover upon a guaranty, commenced by motion for summaryjudgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from anamended judgment of the Supreme Court, Nassau County (Bruno, J.), entered February26, 2014, which is in favor of the plaintiff and against the defendants FrankDellasperanza and Patricia Dellasperanza in the principal sum of $50,000.
Ordered that the appeal by the defendant Patricia A. Kuriga is dismissed, as she isnot aggrieved by the amended judgment appealed from (see CPLR 5511); and itis further,
Ordered that the amended judgment is affirmed on the appeal by the defendantsFrank Dellasperanza and Patricia Dellasperanza, with costs.
On July 1, 2007, the plaintiff, as landlord, and Nikki's Dressing Room, Ltd.(hereinafter the tenant), as tenant, entered into a commercial lease with respect to certainpremises in Huntington. The tenant's principal, the defendant Patricia A. Kuriga, and herparents, the defendants Frank Dellasperanza and Patricia Dellasperanza (hereinaftertogether the Dellasperanzas), unconditionally guaranteed the performance of the tenant'sobligations under the lease, up to a maximum amount of $50,000.
In subsequent nonpayment proceedings commenced against the tenant in the DistrictCourt of Suffolk County, the plaintiff obtained two money judgments against the tenant,dated September 24, 2012, and December 13, 2012, respectively. The plaintiff thencommenced this action to recover upon the guaranty by motion for summary judgment inlieu of complaint pursuant to CPLR 3213. Insofar as relevant to this appeal, the SupremeCourt entered the amended judgment appealed from against the Dellasperanzas after theirdefault in opposing the plaintiff's motion for summary judgment, and upon denying theDellasperanzas' subsequent motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacatetheir default.
A defendant is entitled to relief from a default pursuant to CPLR 5015 (a) (1) only[*2]upon a showing of "both a reasonable excuse for thedefault and a potentially meritorious defense" (Scott v Ward, 130 AD3d 903, 904 [2015]).
Here, the Dellasperanzas have failed to proffer any reasonable excuse for theirdefault. The fact that Kuriga had filed for protection under the federal bankruptcy lawsneither precluded the action from going forward against the Dellasperanzas, nor providedany reasonable excuse for the Dellasperanzas' failure to submit opposing papers (see Merrill Lynch, Pierce, Fenner& Smith, Inc. v Oxford Venture Partners, LLC, 13 AD3d 89 [2004]).Moreover, their allegations of law office failure, which attempted to lay blame uponKuriga's bankruptcy attorney, were conclusory and unsubstantiated by anyone havingpersonal knowledge of the relevant facts (see Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789[2011]).
The Dellasperanzas' remaining contentions are without merit. Mastro, J.P.,Chambers, Roman and Barros, JJ., concur.