Ackerman v. Berkowitz

175 A.D.3d 641

105 N.Y.S.3d 703 (Mem)

David ACKERMAN, Appellant,

v.Sarah BERKOWITZ, etc., et al., Respondents.

2017–07372

Index No. 14997/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 15, 2019

August 28, 2019

David Ackerman, Brooklyn, NY, appellant pro se.

Lee M. Nigen, Lake Success, NY, for respondents.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated April 10, 2017. The order denied the plaintiff's motion, inter alia, to vacate an order of the same court dated April 18, 2016, granting the defendants' cross motion to dismiss the complaint, upon the plaintiff's failure to appear at oral argument.

ORDERED that the order dated April 10, 2017, is affirmed, with costs.

In order to vacate his default in appearing for oral argument on April 18, 2016, the plaintiff was required to demonstrate both a reasonable excuse for his failure to appear and a potentially meritorious cause of action (see CPLR 5015[a][1] ; Option One Mtge. Corp. v. Rose, 164 A.D.3d 1251, 82 N.Y.S.3d 116 ). The plaintiff's motion to vacate his default was addressed to the sound discretion of the Supreme Court (see New Century Mtge. Corp. v. Chimmiri, 146 A.D.3d 893, 894, 45 N.Y.S.3d 209 ).

We agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was to vacate his default in appearing for oral argument. The plaintiff failed to offer a reasonable excuse for failing to appear on April 18, 2016, and failed to demonstrate a potentially meritorious cause of action (see Wachovia Mtge., FSB v. Coleman, 170 A.D.3d 1244, 97 N.Y.S.3d 130 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 67 N.Y.S.3d 655 ).

The plaintiff's remaining...