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Capital One Bank (Usa), N.A., Respondent, -And v. Yuda Glauber

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 6, 2013

CAPITAL ONE BANK (USA), N.A., RESPONDENT, -AND-
v.
YUDA GLAUBER, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), dated December 6, 2011.

Capital One Bank (USA), N.A. v Glauber

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order, insofar as appealed from, upon granting defendant's motion for leave to reargue his prior motion to vacate a default judgment, adhered to the prior determination denying the motion.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover for breach of a credit card agreement, defendant moved to vacate a default judgment that had been entered against him. After his motion had been denied, defendant moved for leave to reargue. The Civil Court granted leave to reargue but adhered to its prior determination.

A defendant seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense to the action (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 the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). Here, the Civil Court did not improvidently exercise its discretion in finding that there was no reasonable excuse for defendant's failure to appear on the court date in question, as defendant's mere assertion that his wife had been ill was undetailed and uncorroborated, and defendant did not explain why he did not inform the court of his inability to appear on the day in question (see Matter of Evan Matthew A. [Jocelyn Yvette A.], 91 AD3d 538 [2012]; Guerre v Trustees of Columbia Univ. in City of NY, 300 AD2d 29 [2002]; Cruz v Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005]). In view of the lack of a reasonable excuse for the default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]).

Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur. Decision Date: May 06, 2013

20130506

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