55-57 Hester Grocery, Inc. v. Queens Metro Stop, Inc.
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
55-57 Hester Grocery, Inc. v Queens Metro Stop, Inc.
2026 NY Slip Op 04392
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
55-57 Hester Grocery, Inc., respondent,
v
Queens Metro Stop, Inc., et al., appellants, et al., defendant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-11881, (Index No. 707625/21)
Betsy Barros, J.P.
Cheryl E. Chambers
Lillian Wan
Susan Quirk, JJ.
Himmelstein, McConnell, Gribben & Joseph LLP, New York, NY (Milad Momeni of counsel), for appellants.
Rina Milos, New York, NY, for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants Queens Metro Stop, Inc., and Kevin L. Ross appeal from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered October 7, 2024. The order denied those defendants' motion, among other things, pursuant to CPLR 5015(a) to vacate an order of the same court entered October 5, 2023, granting the plaintiff's motion for leave to enter a default judgment against those defendants.
ORDERED that the order entered October 7, 2024, is affirmed, with costs.
On April 1, 2021, the plaintiff commenced this action against the defendants Queens Metro Stop, Inc., and Kevin L. Ross (hereinafter together the defendants), among others, by filing a summons and complaint. On or about July 1, 2021, counsel for the defendants filed a notice of appearance. Thereafter, the defendants failed to answer the complaint.
In May 2023, the plaintiff moved for leave to enter a default judgment against the defendants. The defendants opposed the motion. In an order entered October 5, 2023, the Supreme Court granted the plaintiff's motion.
In December 2023, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order entered October 5, 2023. In an order entered October 7, 2024, the Supreme Court denied the defendants' motion. The defendants appeal.
"'After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner'" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d 1006, 1007, quoting Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). "Subdivision (a) of CPLR 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance" (id. at 1007-1008 [internal quotation marks omitted]).
A notice of appearance is "'a simple document that notifies the plaintiff that [*2]defendant is appearing in the action'" (id. at 1008, quoting Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). "Although a defendant 'appears' within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of a notice of appearance does not 'absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211'" (21st Mtge. Corp. v Raghu, 197 AD3d 1212, 1216, quoting Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1009-1010).
Contrary to the defendants' contention, they defaulted in appearing in the action by failing to timely answer the complaint (see Pantanilla v Yuson, 237 AD3d 1213, 1215; Deutsche Bank Natl. Trust Co. v Bararaky, 188 AD3d 1157, 1158). The filing of a notice of appearance and opposition to the plaintiff's prior motions did not cure the defendants' default (see Pantanilla v Yuson, 237 AD3d at 1215; Deutsche Bank Natl. Trust Co. v Bararaky, 188 AD3d at 1158).
Furthermore, the Supreme Court properly denied the defendants' motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate their default. "A defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action" (Sabo v Eisenberg, 243 AD3d 703, 705 [alteration and internal quotation marks omitted]; see Adams v Bonaparte, 239 AD3d 794, 795-796). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion" (Sabo v Eisenberg, 243 AD3d at 705 [internal quotation marks omitted]).
"Although a court has the discretion to accept law office failure as a reasonable excuse for a party's default (see CPLR 2005), such default should not be routinely excused, and mere neglect is not a reasonable excuse" (GITSIT Solutions, LLC v Azcuy, 242 AD3d 956, 958 [alteration and internal quotation marks omitted]; see Cross v Woodbine Caterers, 241 AD3d 1263, 1264). "Further, 'a conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse'" (GITSIT Solutions, LLC v Azcuy, 242 AD3d at 958 [alteration omitted], quoting Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d 784, 786). Here, the defendants' conclusory, undetailed explanation of law office failure constituted, at best, mere neglect and, thus, did not establish a reasonable excuse for their default (see Feng Li v Changlin Xue, 241 AD3d 1439, 1440; Kyung Aye Yoon v Haktung Lam, 222 AD3d 959, 960).
Since the defendants failed to establish a reasonable excuse for their default, it is not necessary to determine whether they demonstrated the existence of potentially meritorious defenses to the action (see Sabo v Eisenberg, 243 AD3d 703).
BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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