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Energex, LLC v. Fulton Lumber & Plumbing Supply

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 30, 2013

ENERGEX, LLC, RESPONDENT,
v.
FULTON LUMBER & PLUMBING SUPPLY, INC., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 17, 2011.

Energex, LLC v Fulton Lbr. & Plumbing Supply, Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2013

PRESENT: ALIOTTA, J.P., PESCE and RIOS, JJ

The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover for goods sold and delivered, a default judgment was entered on January 24, 2011. On May 23, 2011, the parties stipulated to vacate the default judgment and to allow defendant 20 days to answer. Defendant failed to serve its answer and, on September 15, 2011, a second default judgment was entered. Defendant moved to vacate the second default judgment on the ground of "law office failure." The Civil Court denied the motion.

"It is well settled that on a motion for leave to vacate a default judgment pursuant to CPLR 5015(a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense" (Wynne v Wagner, 262 AD2d 556, 556 [1999]). The only excuse proffered here was a bare conclusory assertion of law office failure, which we find was insufficient (see Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002] ["(While a) court may accept law office failure that is not willful or deliberate as a reasonable excuse . . . conclusory and unsubstantiated assertions of law office failure are insufficient"] [citation omitted]; see also Byers v Winthrop Univ. Hosp., 100 AD3d 817, 818 [2012] ["Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible' explanation of the default"], quoting Henry v Kuveke, 9 AD3d 476, 479 [2004]). Thus, the Civil Court's denial of the motion did not constitute an improvident exercise of its discretion (Wynne v Wagner, 262 AD2d 556).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur. Decision Date: April 30, 2013

20130430

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