S. Hecht, Forest Hills, NY, for defendant third-party
& Baron, Esq., P.C., Forest Hills, NY (David J. Baron and
Kristen A. Mantell of counsel), for plaintiff-respondent.
Tromello, McDonnell & Kehoe, Melville, NY (A.G.
Chancellor III of counsel), for third-party
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B.
AUSTIN, JEFFREY A. COHEN, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the defendant Paul J. Gengo appeals (1) from a
judgment of the Supreme Court, Queens County (Strauss, J.),
entered June 27, 2014, which, upon the denial of his request
for an adjournment of the nonjury trial, and upon his default
in appearing at the nonjury trial, is in favor of the
plaintiff and against him in the principal sum of $84,
086.35, and, in effect, in favor of the third-party
defendants and against him, dismissing the third-party
complaint, and (2), as limited by his brief, from so much of
an order of the same court dated December 15, 2014, as denied
that branch of his motion which was to vacate the judgment.
that the appeal from the judgment is dismissed except insofar
as it brings up for review the denial of the defendant's
request for an adjournment; and it is further, ORDERED that
the judgment is affirmed insofar as reviewed; and it is
further, ORDERED that the order is affirmed insofar as
appealed from; and it is further, ORDERED that one bill of
costs is awarded to the plaintiff and the third-party
defendants appearing separately and filing separate briefs.
no appeal lies from a judgment entered on the default of the
appealing party (see CPLR 5511), an appeal from such
a judgment does bring up for review those matters which were
the subject of contest before the Supreme Court (see Alam
v Alam, 123 A.D.3d 1066, 1067; Sarlo-Pinzur v
Pinzur, 59 A.D.3d 607, 608; Tun v Aw, 10 A.D.3d
651, 652). Therefore, on this appeal by the defendant Paul J.
Gengo (hereinafter the defendant) from the judgment, which
was entered upon his failure to appear for a nonjury trial,
this Court's review of the judgment is limited to the
denial of the defendant's request for an adjournment
(see Hawes v Lewis, 127 A.D.3d 921, 922; Alam v
Alam, 123 A.D.3d at 1067).
granting of an adjournment for any purpose rests within the
sound discretion of the Supreme Court (see Matter of
Steven B., 6 N.Y.3d 888, 889), and its determination
will not be disturbed absent an improvident exercise of that
discretion (see Diamond v Diamante, 57 A.D.3d 826,
827). In deciding whether to grant an adjournment, the court
must engage in a balanced consideration of numerous relevant
factors (see Hawes v Lewis, 127 A.D.3d at 922). It
is not an improvident exercise of discretion to deny an
adjournment where the need for such a request is based on the
movant's failure to exercise due diligence (see
Adotey v British Airways, PLC, 145 A.D.3d 748, 749-750;
Matter of Breaker v ACS-Kings, 129 A.D.3d 715, 716;
see also Armele v Moose Intl., 302 A.D.2d 986, 986).
the need for an adjournment resulted from, among other
things, the defendant's lack of due diligence in seeking
discovery and failure to notify the Supreme Court and the
parties of his previously scheduled vacation abroad.
Moreover, the defendant's counsel appeared on the day of
the trial, but voluntarily left before the trial began. The
court therefore did not improvidently exercise its discretion
in denying the defendant's request for an adjournment of
the trial (see Adotey v British Airways, PLC, 145
A.D.3d at 749-750; Matter of Daniel K.L. [Shaquanna
L.], 138 A.D.3d 743, 745; Matter of Breaker v
ACS-Kings, 129 A.D.3d at 716; cf. Sarlo-Pinzur v
Pinzur, 59 A.D.3d at 608).
to vacate the judgment entered upon his failure to appear for
trial, the defendant was required to demonstrate both a
reasonable excuse for his default and the existence of a
potentially meritorious defense to the action (see
Vardaros v Zapas, 105 A.D.3d 1037, 1038). "The
determination of what constitutes a reasonable excuse lies
within the sound discretion of the Supreme Court"
(Eastern Savings Bank, FSB v Charles, 103 A.D.3d
683, 684; see McNamara v McNamara, 144 A.D.3d 1112,
1112-1113; Capurso v Capurso, 134 A.D.3d 974,
975-976). Here, the defendant offered no excuse for his
counsel's decision to leave the courtroom as the trial
began. Coupled with the defendant's own lack of due
diligence in seeking discovery and failure to disclose his
trip abroad, the defendant failed to demonstrate a reasonable
excuse for his default (see Vitolo v Suarez, 130
A.D.3d 610, 611-612).
of the lack of a reasonable excuse, it is unnecessary to
consider whether the defendant demonstrated the existence of
a potentially meritorious defense (see Vardaros v
Zapas, 105 A.D.3d at 1038; Maida v Lessing's
Rest. Servs., Inc., 80 A.D.3d 732; O'Donnell v
Frangakis, 76 A.D.3d 999).
the Supreme Court properly denied that branch of the