Kohn v. Tri-State Hardwoods, Ltd.

92 A.D.3d 642, 937 N.Y.2d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2012
• Status: Published

Opinion

It is undisputed that the plaintiff defaulted in serving a reply to the appellant’s counterclaim and that the appellant failed to move for leave to enter a default judgment on the counterclaim within one year after the default. Since the appellant failed to make a timely motion for leave to enter a default judgment, it was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious claim (see Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]; Costello v Reilly, 36 AD3d 581 [2007]; Iorizzo v Mattikow, 25 AD3d 762, 763 [2006]; Oparaji v Madison Queens-Guy Brewer, 293 AD2d 591, 592 [2002]). The appellant failed to demonstrate a reasonable excuse for its delay of over two years after the one-year statutory time period had expired (see Butindaro v Grinberg, 57 [2008]; Mattera v Capric, 54 AD3d 827, 828 [2008]; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007]; Opia v Chukwu, 278 AD2d 394 [2000]). Accordingly, the appellant’s motion for leave to enter a default judgment on the counterclaim was properly denied.

The appellant’s remaining contention is without merit. Skelos, J.E, Dickerson, Hall, Roman and Cohen, JJ., concur.