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Givan v. Makin

Supreme Court of New York, Fourth Department

March 21, 2014

ROBERT GIVAN AND DEBORAH LEAVITT, DOING BUSINESS AS SWIMWEAR ON THE GO, PLAINTIFFS-RESPONDENTS,
v.
ROBERT A. MAKIN AND BETH A. MAKIN, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered April 1, 2013. The order denied the motion of defendants to vacate a default judgment.

CARL R. VAHL, OLEAN, FOR DEFENDANTS-APPELLANTS.

AMIGONE, SANCHEZ & MATTREY, LLP, BUFFALO (ARTHUR G. BAUMEISTER, JR., OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendants appeal from an order denying their motion to vacate a default judgment entered against them. We note that defendants' contention that the default was prematurely entered during a 30-day stay within which defendants were to obtain new counsel was raised for the first time in their reply papers in Supreme Court, and thus that contention was not properly before the court (see Mikulski v Battaglia, 112 A.D.3d 1355, 1356; Zolfaghari v Hughes Network Sys., LLC, 99 A.D.3d 1234, 1235, lv denied 20 N.Y.3d 861; Dannasch v Bifulco, 184 A.D.2d 415, 417). We reject defendants' further contention that the court abused its discretion in denying their motion on the grounds that they failed to offer a reasonable excuse for missing a court conference and failed to establish a meritorious defense in their initial motion papers. "[E]ven assuming that [defendants'] nonappearance at the conference was excusable..., [we conclude that] their belated attempt in reply papers to establish a meritorious defense was inadequate" (Contractors Cas. & Sur. Co. v 535 Broadhollow Realty, 276 A.D.2d 737, 738).


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