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M & C Brothers, Inc v. Bradley W. Torum et al

State of New York Supreme Court, Appellate Division Third Judicial Department

December 13, 2012


Appeal from an order of the Supreme Court (Becker, J.), entered August 11, 2011 in Delaware County, which, among other things, denied defendants' motion to vacate a default judgment.

The opinion of the court was delivered by: Mercure, J.P.


Calendar Date: October 18, 2012

Before: Mercure, J.P., Spain, Stein, McCarthy and Garry, JJ.

The underlying facts are more fully set forth in our prior decision dismissing an appeal from a Supreme Court order that granted plaintiff's motion to strike defendants' answer (75 AD3d 869 [2010]). In March 2007, plaintiff commenced this breach of contract action following a dispute involving the sale and harvest of timber on land formerly owned by defendants. After depositions were repeatedly adjourned, Supreme Court issued a scheduling order directing completion of depositions by a date certain, subject to a conditional order of preclusion permitting an aggrieved party to seek an order striking the offending party's claims or defenses. Defendants did not appear for scheduled depositions, offered no explanation, and failed to submit written opposition to plaintiff's subsequent motion to strike their answer. Supreme Court granted the motion to strike and entered a default judgment against defendants. As noted above, this Court dismissed defendants' appeal (id. at 870-871).

Meanwhile, Supreme Court denied defendants' motion to vacate the default judgment. Defendants filed, but later withdrew, an appeal from that order. Thereafter, defendants moved again in Supreme Court to vacate the default judgment, but withdrew that motion as well. Defendants then moved a third time to vacate the default judgment. Supreme Court denied the motion and imposed a sanction of $1,250 upon defendants' counsel, Tatiana Neroni. Defendants and Neroni appeal, and we now affirm.

Defendants and Neroni argue that Supreme Court abused its discretion in denying defendants' most recent request to vacate because, they maintain, plaintiff's submissions in support of its motion to strike defendants' answer and for a default judgment were insufficient, rendering the judgment a nullity. "CPLR 3215 (f) requires that an applicant for a default judgment file 'proof by affidavit made by the party of the facts constituting the claim[,]' [or a] verified complaint . . . [that] has been properly served" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). Here, plaintiff relied upon its verified complaint in its application for a default judgment. Although defendants and Neroni contend that the copy of the complaint provided with the motion was missing several pages -- including the verification page -- the court had a copy of the entire verified complaint before it, and relied upon that copy and an attached exhibit in granting the default judgment. Under the circumstances, plaintiff's submissions were sufficient to meet the statutory requirements for an application for default (see id. at 71; cf. State of New York v Williams, 44 AD3d 1149, 1151-1152 [2007]; Hann v Morrison, 247 AD2d 706, 708 [1998]). Moreover, in light of defendants' pattern of noncompliance, failure to offer a reasonable excuse for either their default or the violation of the underlying conditional preclusion order, multiple motions to vacate the default, and the lack of any substantive response to plaintiff's request for sanctions, Supreme Court did not abuse its discretion in denying the request to vacate and imposing sanctions upon Neroni (see Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1175-1176 [2008]; Household Bank Region I v Stickles, 276 AD2d 940, 941-942 [2000]; cf. Gerdes v Canales, 74 AD3d 1017, 1018 [2010]; Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [2008]).

The remaining arguments of defendants and Neroni are either lacking in merit or concern factual matters that are outside the record.

Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the order is affirmed, with costs.


Robert D. Mayberger Clerk of the Court


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