| Skutelsky v JN Natural Fruit Corp. |
| 2016 NY Slip Op 03159 [138 AD3d 1099] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Dmitry Skutelsky, Appellant, v JN NaturalFruit Corp., Respondent. |
Tsyngauz & Associates, P.C., New York, NY (Roman Kopelevich and Simon I.Malinowski of counsel), for appellant.
Michael E. Pressman, New York, NY (Stuart B. Cholewa of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.),dated March 5, 2015, as granted that branch of the motion of the defendant which waspursuant to CPLR 5015 (a) (1) to vacate a judgment of the same court dated October 22,2014, in favor of the plaintiff and against the defendant in the total sum of $280,885.20,entered upon the defendant's failure to appear in the action.
Ordered that the order is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, and that branch of the defendant's motion which waspursuant to CPLR 5015 (a) (1) to vacate the judgment dated October 22, 2014, in favorof the plaintiff and against the defendant in the total sum of $280,885.20, entered uponthe defendant's failure to appear in the action, is denied.
A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) mustdemonstrate a reasonable excuse for its delay in appearing and a potentially meritoriousdefense to the action (see TollBros., Inc. v Dorsch, 91 AD3d 755 [2012]; Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150[2011]; Katz v Marra, 74AD3d 888, 890 [2010]). Although there exists a strong public policy which favorsthe disposition of matters on their merits (see Gerdes v Canales, 74 AD3d 1017 [2010]; Bunch v Dollar Budget, Inc.,12 AD3d 391 [2004]), the decision as to whether or not to set aside a default isgenerally left to the sound discretion of the trial court (see Woodson v MendonLeasing Corp., 100 NY2d 62, 68 [2003]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1168 [2010];Hegarty v Ballee, 18 AD3d706 [2005]). The court "should also consider potential prejudice to the opposingparty, whether the default was willful or evinced an intent to abandon the litigation, andwhether vacating the default would serve the public policy of resolving actions on theirmerits" (Needleman vTornheim, 106 AD3d 707, 708 [2013]; see Toll Bros., Inc. v Dorsch, 91AD3d at 755-756).
Here, the defendant's proffered excuse that its default in appearing was due to theplaintiff's failure to serve a complaint after a demand was made by the defendant'sinsurance carrier was unsubstantiated, conclusory, and inadequately explained, and,therefore, did not constitute a reasonable excuse for the default (see Wells Fargo Bank, N.A. vKrauss, 128 AD3d 813, 814 [2015]). Moreover, the record demonstrates apattern of willful default and neglect by this defendant over a [*2]period of almost two years, during which it was served withnumerous legal notices relating to the action which were ignored. Under thecircumstances the Supreme Court improvidently exercised its discretion in excusing thedefendant's default and in vacating the judgment entered upon its default (seeRoussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]).
In view of the lack of a reasonable excuse, it was unnecessary for the Supreme Courtto consider whether the defendant sufficiently demonstrated the existence of a potentiallymeritorious defense (see Trepelv Greenman-Pedersen, Inc., 99 AD3d 789, 791 [2012]; Centennial El. Indus., Inc. vNinety-Five Madison Corp., 90 AD3d 689, 690 [2011]; O'Donnell v Frangakis, 76AD3d 999, 1000 [2010]). Rivera, J.P., Miller, Hinds-Radix and LaSalle, JJ.,concur.