Almodovar v. All State General Building

166 A.D.2d 396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1990
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about July 6, 1990, which denied the motion of defendants All State General Building and Remodeling Contractors, Inc. and Cecil Gopee to vacate a default judgment entered against them on February 21, 1989, unanimously affirmed, with costs.

The IAS court did not abuse its discretion in denying defendants’ motion to vacate a default judgment, because defendants failed to demonstrate either a reasonable excuse for the default or a meritorious defense. (Gray v B. R. Trucking Co., 59 NY2d 649, rearg dismissed 59 NY2d 966.) In view of defendants’ history of dilatory behavior, the court was not obligated to accept their unsupported allegation that their prior attorney had never informed them that the court had ordered them to comply with plaintiffs’ demands for discovery. Moreover, the complaint stated claims against defendant Go-pee in his individual capacity, and alleged that the moneys paid under the contract had been paid to him personally. In light of the existence of substantial evidence that Gopee used the corporate defendant as an alter ego to carry on business for his personal ends (cf, Bonanni v Straight Arrow Publishers, 133 AD2d 585), his bare allegation that he had no individual liability was insufficient to state a meritorious defense. Nor did either defendant state a meritorious defense through Gopee’s completely unsupported allegations that work was not completed under the contract because plaintiffs prevented defendants from carrying out their obligations. Concur—Ross, J. P., Milonas, Asch, Ellerin and Rubin, JJ.