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Kim v. S & M Caterers, Inc.

Supreme Court of New York, Second Department

December 4, 2013

Jihun Kim, et al., respondents,
v.
S & M Caterers, Inc., etc., defendant, Sansoogapsan II, Inc., appellant. Index No. 6378/12

Steptoe & Johnson LLP, New York, N.Y. (John D. Lovi, Michael Rips, and Justin B. Perri of counsel), for appellant.

Steven Louros, New York, N.Y., for respondents.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Sansoogapsan II, Inc., appeals from an order of the Supreme Court, Queens County (Butler, J.), dated November 16, 2012, which denied its motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated August 1, 2012, granting that branch of the plaintiffs' unopposed motion which was for leave to enter a default judgment against it upon its failure to appear or answer the complaint.

ORDERED that the order dated November 16, 2012, is affirmed, with costs.

A defendant seeking to vacate a default must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 N.Y.2d 138, 141; Yao Ping Tang v Grand Estate, LLC, 77 A.D.3d 822, 822-823). "A decision to vacate a prior order or judgment rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion" (Epps v LaSalle Bus, 271 A.D.2d 400, 400; see Kohn v Kohn, 86 A.D.3d 630).

Here, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Maida v Lessing's Rest. Servs., Inc., 80 A.D.3d 732, 733; Gartner v Unified Windows, Doors & Siding, Inc., 71 A.D.3d 631, 632; Fekete v Camp Skwere, 16 A.D.3d 544, 545). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Maida v Lessing's Rest. Servs., Inc., 80 A.D.3d at 733; Abdul v Hirschfield, 71 A.D.3d 707, 709).

DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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