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In re Haberman

Supreme Court of New York, Second Department

July 19, 2017

In the Matter of Sinclair Haberman, et al., petitioners/plaintiffs-respondents,
v.
Zoning Board of Appeals of the City of Long Beach, et al., respondents/defendants-appellants, et al., respondent/defendant. Index No. 1138/04

          Argued-May 8, 2017

         D52888 O/afa

          Kudman Trachten Aloe, LLP, New York, NY (Paul H. Aloe and David N. Saponara of counsel), for respondents/defendants-appellants Zoning Board of Appeals of the City of Long Beach, Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone, and Michael Leonetti.

          Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, NY (Joanna M. Topping of counsel; Robert A. Spolzino, former of counsel on the brief), for respondents/defendants-appellants City of Long Beach and Scott Kemins.

          Herrick Feinstein, New York, NY (Scott Mollen of counsel), Davis Wright Tremaine LLP, New York, NY (Victor A. Kovner of counsel), Duane Morris, LLP, New York, NY (Thomas R. Newman of counsel), James Edward Pelzer, Manhasset, NY, Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, NY (Stephen G. Limmer of counsel), Jacob Haberman, New York, NY, and Jaspan Schlesinger LLP, Garden City, NY (Steven R. Schlesinger of counsel), for petitioners/plaintiffs-respondents (one brief filed).

          RUTH C. BALKIN, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the City of Long Beach dated December 29, 2003, which revoked a building permit previously issued to the petitioners/plaintiffs on August 12, 2003, and action, inter alia, for a judgment declaring that the petitioners/plaintiffs are entitled to the building permit, the Zoning Board of Appeals of the City of Long Beach, Rocco Morelli, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone, and Michael Leonetti appeal, and the City of Long Beach and Scott Kemins, as Commissioner of the Department of Buildings of the City of Long Beach separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered March 27, 2015, as granted the petitioners/plaintiffs' motion for leave to enter a default judgment against them and denied their respective cross motions for leave to file amended answers to the third amended petition/complaint.

         ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the petitioners/plaintiffs' motion for leave to enter a default judgment on the causes of action seeking relief pursuant to CPLR article 78, and denied the appellants' respective cross motions for leave to file amended answers to those causes of action is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

         "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing" (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 A.D.3d 649, 651; see CPLR 3215[f]; Allstate Prop. & Cas. Ins. Co. v Carrier, 147 A.D.3d 889, 890; Roy v 81E98th KH Gym, LLC, 142 A.D.3d 985; Gershman v Ahmad, 131 A.D.3d 1104, 1105; Dupps v Betancourt, 99 A.D.3d 855). "To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense to the action" (Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP, 144 A.D.3d 1097, 1098; Fried v Jacob Holding, Inc., 110 A.D.3d 56, 60; Wassertheil v Elburg, LLC, 94 A.D.3d 753, 753; New Seven Colors Corp. v White Bubble Laundromat, Inc., 89 A.D.3d 701, 702). "The motion is addressed to the broad discretion of the court, which should also consider whether prejudice has resulted from the delay, whether there is evidence of willfulness on the defaulting defendant's part, and the strong public policy in favor of resolving cases on the merits" (Brice v City of New York, 139 A.D.3d 888, 889; see Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP, 144 A.D.3d at 1098).

         The appellants moved pursuant to CPLR3211(a)(7) and 7804(f), inter alia, to dismiss the first, second, fifth, and sixth causes of action of the third amended petition/complaint insofar as asserted against them. By order dated September 13, 2010, the Supreme Court, inter alia, granted that branch of the motion. By decision and order dated April 17, 2012, this Court reversed that portion of the order (see Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 94 A.D.3d 997), and denied the motion. On October 4, 2012, the petitioners/plaintiffs served a written demand that an answer be served within 10 days. By establishing that the appellants failed to comply with that demand, the petitioners/plaintiffs established the appellants' default (see CPLR 3211[f]). Contrary to the appellants' contention, the petitioners/plaintiffs were not required to provide proof of entry of the appellate order with the clerk of the original court (see Rockland County Patrolmen's Benevolent Assn. v Town of Clarkstown, 288 A.D.2d 456, 457). Moreover, the Supreme Court providently exercised its discretion in finding that the appellants' proffered excuse was not reasonable (see Gershman v Ahmad, 131 A.D.3d at 1105; Fried v Jacob Holding, Inc., 110 A.D.3d at 60; Harcztark v Drive Variety, Inc., 21 A.D.3d 876, 876-877).

         Since the appellants failed to demonstrate a reasonable excuse for their default, we need not reach the issue of whether the appellants demonstrated the existence of a potentially meritorious defense (see Matter of Foreclosure of Tax Liens,144 A.D.3d 1033, 1034; CEO Bus. Brokers, ...


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