ADL Construction, LLC v. Chandler

78 A.D.3d 407, 909 N.Y.S.2d 908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about April 7, 2009, which denied defendant Chandler’s motion to vacate his default in responding to plaintiffs’ motion for summary judgment, unanimously affirmed, with costs.

Defendant failed to demonstrate a reasonable excuse for his default 0see CFLR 5015 [a] [1]). After his bankruptcy court petition was dismissed, he was obligated to respond to plaintiffs’ pending summary judgment motion, to obtain plaintiffs’ consent to additional time for his response, or to seek additional time from the court. Defendant did nothing.

The record supports the court’s conclusion, in light of defendant’s other conduct, including his failure to make any attempt to vacate the default until almost a year later, that defendant’s failure to respond to the motion was willful and calculated to cause delay (see e.g. Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454 [2010]; Brown v Suggs, 38 AD3d 329 [2007]).

There is no evidence to support defendant’s claim that his default should have been vacated on the ground of fraud, misrepresentation or misconduct of an adverse party.

We have considered defendant’s remaining arguments and find them unavailing. Concur — Mazzarelli, J.E, Friedman, Catterson, DeGrasse and Manzanet-Daniels, JJ.

Motion to dismiss appeal denied.