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Counsel Financial Services, LLC, Plaintiff-Respondent v. David Mcquade Leibowitz

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 18, 2011

COUNSEL FINANCIAL SERVICES, LLC, PLAINTIFF-RESPONDENT,
v.
DAVID MCQUADE LEIBOWITZ, P.C. AND DAVID MCQUADE LEIBOWITZ, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered February 24, 2010.

Counsel Fin. Servs., LLC v David Mcquade Leibowitz, P.C.

Appellate Division, Fourth Department

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.

Decided on February 18, 2011

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

The order denied defendants' motion to vacate the default order and judgment.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendants appeal from an order denying their motion seeking to vacate a default order and judgment entered against them following their failure to oppose plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213. On a prior appeal, we affirmed the default order and judgment that granted plaintiff's motion and ordered defendants to pay a specified amount due on a promissory note executed by defendant David McQuade Leibowitz, P.C. and personally guaranteed by defendant David McQuade Leibowitz (Counsel Fin. Servs., LLC v David McQuade Leibowitz, P.C., 67 AD3d 1483). Even assuming, arguendo, that the default order and judgment may be vacated pursuant to CPLR 5015 (a) (1) despite defendants' prior appeal (see Pergamon Press v Tietze, 81 AD2d 831, lv dismissed 54 NY2d 605; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6), we conclude that Supreme Court properly refused to do so inasmuch as defendants failed to establish a reasonable excuse for their default and a meritorious defense to the action (see Brehm v Patton, 55 AD3d 1362; cf. Wilcox v U-Haul Co., 256 AD2d 973; see generally CPLR 5015 [a] [1]).

Entered: February 18, 2011

Patricia L. Morgan Clerk of the Court

20110218

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