Ekonomakos v. Levy

177 N.Y.S.3d 901 (Mem)

Abel EKONOMAKOS, respondent,

v.Nissim LEVY, et al., appellants, et al., defendant.

2021–08719

Index No. 524698/19

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

Submitted—October 7, 2022

December 7, 2022

David M. Fish, P.C., Garden City, NY, for appellants.

Garry Pogil, New York, NY, for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants Nissim Levy and Daniel Shulmann appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated November 4, 2021. The order granted the plaintiff's motion for leave to enter a default judgment against the defendants Nissim Levy and Daniel Shulmann.

ORDERED that the order is affirmed, with costs.

To defeat a facially sufficient motion for leave to enter a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action (see Bank of N.Y. v. DeJohn, 207 A.D.3d 510, 511, 170 N.Y.S.3d 473 ; Jong Gwon Kim v. Strippoli, 144 A.D.3d 982, 983, 42 N.Y.S.3d 245 ). "Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" ( Nowakowski v. Stages, 179 A.D.3d 822, 823, 116 N.Y.S.3d 677 [internal quotation marks omitted]). "The determination of what constitutes a reasonable excuse lies within the discretion of the trial court" ( Corvera v. Prime Source Dev., LLC, 172 A.D.3d 1161, 1163, 101 N.Y.S.3d 395 ; see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ).

Here, the Supreme Court providently exercised its discretion in determining that the defendants Nissim Levy and Daniel Schulmann (hereinafter together the defendants) failed to proffer a reasonable excuse for their default in answering the complaint. Contrary to the defendants’ contention, their belated service of an answer, without leave of court and nearly two years after they were validly served with process (see CPLR 3012[d] ), does not evince lack of willfulness or diligence. Moreover, the defendants’ unsuccessful challenge to the validity of the service of process upon them...