| Park Lane N. Owners, Inc. v Gengo |
| 2017 NY Slip Op 04853 [151 AD3d 874] |
| June 14, 2017 |
| Appellate Division, Second Department |
[*1]
| Park Lane North Owners, Inc., Respondent, v Paul J.Gengo, Defendant/Third-Party Plaintiff-Appellant, et al., Defendant. Nicholas Pescetto et al.,Third-Party Defendants-Respondents. |
Warren S. Hecht, Forest Hills, NY, for defendant third-party plaintiff-appellant.
Baron & Baron, Esq., P.C., Forest Hills, NY (David J. Baron and Kristen A. Mantell ofcounsel), for plaintiff-respondent.
Tromello, McDonnell & Kehoe, Melville, NY (A.G. Chancellor III of counsel), forthird-party defendants-respondents.
In an action, inter alia, to recover damages for breach of contract, the defendant Paul J.Gengo appeals (1) from a judgment of the Supreme Court, Queens County (Strauss, J.), enteredJune 27, 2014, which, upon the denial of his request for an adjournment of the nonjury trial, andupon his default in appearing at the nonjury trial, is in favor of the plaintiff and against him in theprincipal sum of $84,086.35, and, in effect, in favor of the third-party defendants and againsthim, dismissing the third-party complaint, and (2), as limited by his brief, from so much of anorder of the same court dated December 15, 2014, as denied that branch of his motion which wasto vacate the judgment.
Ordered that the appeal from the judgment is dismissed except insofar as it brings up forreview the denial of the defendant's request for an adjournment; and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff and the third-party defendantsappearing separately and filing separate briefs.
Although no appeal lies from a judgment entered on the default of the appealing party(see CPLR 5511), an appeal from such a judgment does bring up for review those matterswhich were the subject of contest before the Supreme Court (see Alam v Alam, 123 AD3d 1066, 1067 [2014]; [*2]Sarlo-Pinzur v Pinzur, 59 AD3d 607, 608 [2009]; Tun v Aw, 10 AD3d 651, 652[2004]). Therefore, on this appeal by the defendant Paul J. Gengo (hereinafter the defendant)from the judgment, which was entered upon his failure to appear for a nonjury trial, this Court'sreview of the judgment is limited to the denial of the defendant's request for an adjournment (see Hawes v Lewis, 127 AD3d921, 922 [2015]; Alam v Alam, 123 AD3d at 1067).
The granting of an adjournment for any purpose rests within the sound discretion of theSupreme Court (see Matter of StevenB., 6 NY3d 888, 889 [2006]), and its determination will not be disturbed absent animprovident exercise of that discretion (see Diamond v Diamante, 57 AD3d 826, 827 [2008]). In decidingwhether to grant an adjournment, the court must engage in a balanced consideration of numerousrelevant factors (see Hawes v Lewis, 127 AD3d at 922). It is not an improvident exerciseof discretion to deny an adjournment where the need for such a request is based on the movant'sfailure to exercise due diligence (seeAdotey v British Airways, PLC, 145 AD3d 748, 749-750 [2016]; Matter of Breaker v ACS-Kings, 129AD3d 715, 716 [2015]; see also Armele v Moose Intl., 302 AD2d 986, 986[2003]).
Here, the need for an adjournment resulted from, among other things, the defendant's lack ofdue diligence in seeking discovery and failure to notify the Supreme Court and the parties of hispreviously scheduled vacation abroad. Moreover, the defendant's counsel appeared on the day ofthe trial, but voluntarily left before the trial began. The court therefore did not improvidentlyexercise its discretion in denying the defendant's request for an adjournment of the trial (seeAdotey v British Airways, PLC, 145 AD3d at 749-750; Matter of Daniel K.L. [Shaquanna L.], 138 AD3d 743, 745 [2016];Matter of Breaker v ACS-Kings, 129 AD3d at 716; cf. Sarlo-Pinzur v Pinzur, 59AD3d at 608).
Moreover, to vacate the judgment entered upon his failure to appear for trial, the defendantwas required to demonstrate both a reasonable excuse for his default and the existence of apotentially meritorious defense to the action (see Vardaros v Zapas, 105 AD3d 1037, 1038 [2013]). "Thedetermination of what constitutes a reasonable excuse . . . lies within the sounddiscretion of the Supreme Court" (Eastern Sav. Bank, FSB v Charles, 103 AD3d 683, 684 [2013]; see McNamara v McNamara, 144AD3d 1112, 1112-1113 [2016]; Capurso v Capurso, 134 AD3d 974, 975-976 [2015]). Here, thedefendant offered no excuse for his counsel's decision to leave the courtroom as the trial began.Coupled with the defendant's own lack of due diligence in seeking discovery and failure todisclose his trip abroad, the defendant failed to demonstrate a reasonable excuse for his default(see Vitolo v Suarez, 130 AD3d610, 611-612 [2015]).
In view of the lack of a reasonable excuse, it is unnecessary to consider whether thedefendant demonstrated the existence of a potentially meritorious defense (see Vardaros vZapas, 105 AD3d at 1038; Maida vLessing's Rest. Servs., Inc., 80 AD3d 732 [2011]; O'Donnell v Frangakis, 76 AD3d 999 [2010]).
Accordingly, the Supreme Court properly denied that branch of the defendant's motion whichwas to vacate the judgment. Rivera, J.P., Leventhal, Austin and Cohen, JJ., concur.