Daniels v. Coney Mgt., LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 22, 2019
• Docket: 2019 NYSlipOp 50429(U)
• Status: Published

Opinion

Michael J. Daniels, Respondent,

against

Coney Management, LLC, Appellant.

Slochowsky & Slochowsky, LLP (Anjanagauri Koul of counsel), for appellant. Michael J. Daniels, respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 1, 2016. The order denied defendant's motion to vacate a judgment of that court entered September 29, 2016 upon defendant's failure to appear at trial.

ORDERED that the order is affirmed, without costs.

In this small claims action to recover $5,000 for damage to personal property, defendant initially defaulted and, following an inquest, a default judgment was entered on September 24, 2015 awarding plaintiff the principal sum of $4,250. Defendant's motion to vacate that default judgment was subsequently granted. Thereafter, defendant failed to appear for a trial date that had been marked final as against both sides, and a new default judgment was entered on September 29, 2016 in favor of plaintiff in the principal sum of $5,000. Defendant's motion to vacate that default judgment was denied by order entered December 1, 2016.

A defendant seeking to vacate a default judgment upon the ground of excusable default is required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Puswald v Adelphi Repair, Inc., 28 Misc 3d 134[A], 2010 NY Slip Op 51347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; Ford Motor Credit Co. v Stim, 13 Misc 3d 144[A], 2006 NY Slip Op 52320[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the . . . Court" (Levi v Levi, 46 AD3d 519, 519 [2007]). Here, we find that defendant's moving papers failed to establish, with sufficient specificity, a reasonable excuse for its default. Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 2019