Plotkin v. Avon Development Enterprises Corp.

245 A.D.2d 109, 666 N.Y.S.2d 143, 1997 N.Y. App. Div. LEXIS 12896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered August 27, 1996, which denied defendants’ motion to vacate a default judgment entered against them, unanimously affirmed, with costs. Appeal from judgment, same court and Justice, entered January 30, 1996, upon defendants’ default, unanimously dismissed, without costs, as taken from a nonappealable paper.

Defendants fail to make the required showing of lack of notice of the action in time to defend under CPLR 317 or excusable default under CPLR 5015 (a) (see, Associated Imports v Amiel Publ., 168 AD2d 354, lv dismissed 77 NY2d 873). The summons and complaint were served on or about June 15, 1995. Plaintiffs attorney sent letters to defendants at the end of July advising them that they were in default and that he would enter a default judgment in 10 days if they did not answer. This led to prompt contact between plaintiffs attorney and an attorney who advised the former that defendants were not yet certain as to how they wanted to proceed, but who did not request an extension of time to answer. The failure of this attorney to find the proof of service in the court’s file and his three-day illness from August 31 to September 2 do not explain defendants’ continuing default through August, and his forgetfulness after his part-time return to the office does not explain why defendants did not oppose plaintiffs motion for a default judgment made on notice in late September, or why they did not seek to have the January 1996 default judgment vacated until in or around April 1996 (see,. Grosso v Hauck, 99 AD2d 750). We have considered defendants’ other arguments and find them to be without merit. Concur—Ellerin, J. P., Wallach, Williams, Andrias and Colabella, JJ.