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Security Systems Alarm, Inc. and Sprinkler System Associate, Inc v. Emel Gulumoglu and Melahat Aktas

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 20, 2012

SECURITY SYSTEMS ALARM, INC. AND SPRINKLER SYSTEM ASSOCIATE, INC.,
RESPONDENTS,
v.
EMEL GULUMOGLU AND MELAHAT AKTAS,
APPELLANTS.

Appeal from an order of the District Court of Suffolk County, Second District (Stephen L. Ukeiley, J.), dated August 23, 2011.

Security Sys. Alarm, Inc. v Gulumoglu

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2012

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The order denied defendants' motion to vacate an order dated June 25, 2008 granting, on default, plaintiffs' prior motion for summary judgment, and the judgment entered pursuant thereto on August 20, 2008, and, upon such vacatur, to deny plaintiffs' motion for summary judgment.

ORDERED that the order dated August 23, 2011 is reversed, without costs, defendants' motion to vacate the order dated June 25, 2008 granting, on default, plaintiffs' prior motion for summary judgment, and the judgment entered pursuant thereto on August 20, 2008, and, upon such vacatur, to deny plaintiffs' motion for summary judgment, is granted, and plaintiffs' motion for summary judgment is denied.

In this action to recover the unpaid balance of a loan made to defendants, defendants moved to vacate an order granting, on default, plaintiffs' prior motion for summary judgment, and the judgment entered pursuant thereto, and upon such vacatur, to deny plaintiffs' motion for summary judgment. The District Court denied the motion, finding that defendants had not demonstrated a reasonable excuse for their default.

To vacate the order granting plaintiffs' motion for summary judgment on default and the judgment entered pursuant thereto, defendants had to show both a reasonable excuse for their default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse lies within a motion court's discretion (see Diaz v Ralph, 66 AD3d 819 [2009]).

As an excuse for failing to oppose plaintiffs' motion, defendants' counsel claimed inadvertent law office failure based on illness, and the fact that her various health problems had resulted not only in physical problems, doctors' visits, tests and hospitalizations, but also in mental distress and preoccupation with her illness. We note that counsel's affidavit was detailed and specific (compare Cantor v Flores, 94 AD3d 936 [2012]), and that the default did not appear to be part of a pattern of neglect or willfulness (see Montefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d 673 [2007]). In light of the circumstances presented, we find that the District Court improvidently exercised its discretion in finding that defendants had failed to demonstrate a reasonable excuse for their default (see Mr. Ho Charter Serv., Inc. v Ho, 94 AD3d 631 [2012]; Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 AD3d 509 [2007]; 1680 Eastchester Realty Corp. v Poli, 32 Misc 3d 128[A], 2011 NY Slip Op 51253[U] [App Term, 1st Dept 2011]).

Moreover, the detailed affidavits submitted by defendants were sufficient to demonstrate a potentially meritorious defense and to raise a triable issue of fact in response to plaintiffs' motion, as they credibly claim that the money at issue was intended to be a gift, not a loan, to defendant Emel Gulumoglu, and that the two checks in question had been made out to Melahat Aktas, Ms. Gulumoglu's friend, simply because Ms. Gulumoglu did not have a checking account at that time.

Accordingly, the order dated August 23, 2011 is reversed, defendants' motion to vacate the order dated June 25, 2008 granting, on default, plaintiffs' prior motion for summary judgment, and the judgment entered pursuant thereto on August 20, 2008, and, upon such vacatur, to deny plaintiffs' motion for summary judgment, is granted, and plaintiffs' motion for summary judgment is denied.

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: December 20, 2012

20121220

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