Whitfield v. Vizhco

Opinion

Whitfield v Vizhco

2026 NY Slip Op 04980

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

John Whitfield, appellant,

v

Wilson Sigua Vizhco, et al., defendants, Megan M. Henzi, etc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2023-08493, (Index No. 508123/22)

Francesca E. Connolly, J.P.

Linda Christopher

Lourdes M. Ventura

Donna-Marie E. Golia, JJ.

John Whitfield, Brooklyn, NY, appellant pro se.

Steven Banks, Corporation Counsel, New York, NY (Deborah A. Brenner and Jennifer Lerner of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colon, J.), dated June 21, 2023. The order (1) denied the plaintiff's motion for leave to enter a default judgment against the defendant Megan M. Henzi, (2) granted the cross-motion of the defendant Megan M. Henzi to compel the plaintiff to accept her answer as timely served and filed nunc pro tunc, (3) denied the plaintiff's cross-motion to impose sanctions upon the defendant Megan M. Henzi, and (4) denied the plaintiff's motion to vacate his default in appearing for oral argument on April 26, 2023.

ORDERED that the appeal from so much of the order as denied the plaintiff's motion for leave to enter a default judgment against the defendant Megan M. Henzi, granted the cross-motion of the defendant Megan M. Henzi to compel the plaintiff to accept her answer as timely served and filed nunc pro tunc, and denied the plaintiff's cross-motion to impose sanctions upon the defendant Megan M. Henzi is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Megan M. Henzi.

In March 2022, the plaintiff commenced this action against, among others, the defendant Megan M. Henzi. On July 4, 2022, the plaintiff moved for leave to enter a default judgment against Henzi. On July 27, 2022, Henzi, through counsel, answered the complaint. On December 27, 2022, Henzi opposed the plaintiff's motion and cross-moved to compel the plaintiff to accept her answer as timely served and filed nunc pro tunc. The plaintiff, inter alia, cross-moved to impose sanctions upon Henzi. On April 26, 2023, the Supreme Court held oral argument on the plaintiff's motion, Henzi's cross-motion, and the plaintiff's cross-motion but the plaintiff did not appear. Upon receiving a proposed order, the plaintiff moved to vacate his default in appearing for oral argument on April 26, 2023.

In an order dated June 21, 2023, the Supreme Court denied the plaintiff's motion for leave to enter a default judgment against Henzi, granted Henzi's cross-motion to compel the plaintiff [*2]to accept her answer as timely served and filed nunc pro tunc, denied the plaintiff's cross-motion to impose sanctions upon Henzi, and denied the plaintiff's motion to vacate his default in appearing for oral argument on April 26, 2023. The plaintiff appeals.

The Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate his default in appearing for oral argument on April 26, 2023. "A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious motion or opposition to the motion" (New Hope Missionary Baptist Church, Inc. v 466 Lafayette, Ltd., 230 AD3d 510, 511 [internal quotation marks omitted; see CPLR 5015[a]; Rudsky v Schechtman, 219 AD3d 1453, 1454; Kramarenko v New York Community Hosp., 134 AD3d 770, 772). "Whether an excuse is reasonable is a determination within the sound discretion of the court" (Horio Realty Corp. v Hunts Point Flower Mkt., Inc., 181 AD3d 571, 572; see Codrington v Churcher, 209 AD3d 626, 627). Here, the plaintiff's explanation that he did not realize that the April 26, 2023 appearance was an oral argument that required his in-person attendance and that he was preoccupied with, among other things, filing complaints in connection with his mother's death six months prior did not constitute a reasonable excuse for his default (see Rudsky v Schechtman, 219 AD3d at 1455; 126 Henry St., Inc. v Cater, 197 AD3d 598, 601; Stein v Davidow, Davidow, Siegel & Stern, LLP, 157 AD3d 741, 742). Since the plaintiff failed to demonstrate a reasonable excuse for his default, this Court need not consider whether he demonstrated that his motion for leave to enter a default judgment against Henzi or his cross-motion to impose sanctions upon Henzi were potentially meritorious or whether the plaintiff demonstrated a potentially meritorious opposition to Henzi's cross-motion to compel the plaintiff to accept her answer as timely served and filed nunc pro tunc (see Rudsky v Schechtman, 219 AD3d at 1455).

The plaintiff's remaining contentions are not properly before this Court.

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court