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Melnick v. Khoroushi

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 30, 2008

STUART L. MELNICK, ET AL., PLAINTIFFS-APPELLANTS,
v.
FRED KHOROUSHI, ET AL., DEFENDANTS-RESPONDENTS, HEIDI LIEBOWITZ, DEFENDANT.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 18, 2008, which denied plaintiffs' motion to vacate a default judgment that had affirmed an arbitration award directing plaintiffs to refund $12,000 in legal fees to defendants, unanimously affirmed, with costs. Sanction for frivolous prosecution of this appeal (22 NYCRR 130-1.1) imposed on plaintiffs for $3,500. The Clerk of Supreme Court, New York County directed to enter judgment payable in that amount to Lawyers' Fund for Client Protection, and the matter remanded for determination of reasonable attorney fees incurred in responding to this appeal, to be payable by plaintiffs to defendants Khoroushi and Alpine Armoring.

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

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

Lippman, P.J., Gonzalez, Nardelli, Buckley, Acosta, JJ.

109218/07

A default is considered intentional when a party takes no steps to vacate it until after judgment has been entered against him (see Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]). Despite having been afforded ample opportunity to avoid the entry of default judgment, plaintiffs failed to demonstrate either a reasonable excuse for their default or a meritorious defense to the counterclaims asserted by defendants (see Granibras Granitos Brasileiros, Ltda. v Farber, 34 AD3d 230 [2006]).

Under the circumstances, this appeal is frivolous. Sanctions should be imposed, and the responding defendants should be reimbursed for their reasonable expenses and attorney fees incurred on this appeal (see Tsabbar v Auld, 26 AD3d 233 [2006]).

We have considered plaintiffs' remaining arguments and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081230

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