Malon 433, Inc. v. Metro Elec. Contractors, Inc.

178 A.D.3d 439

111 N.Y.S.3d 172 (Mem)

MALON 433, INC., Plaintiff–Respondent,

v.METRO ELECTRICAL CONTRACTORS, INC., Defendant–Appellant,Mayer Weber, Defendant.

10464

Index 153166/17

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

ENTERED: DECEMBER 3, 2019

Alter & Barbaro, Brooklyn (Nichole Bishop Castillo of counsel), for appellant.

Peyrot & Associates, P.C., New York (David C. Van Leeuwen of counsel), for respondent.

Friedman, J.P., Oing, Singh, Moulton, JJ.

Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered December 5, 2018, after inquest, awarding plaintiff the total amount of $88,228.67, and bringing up for review orders, same court and Justice, entered September 25, 2018 and December 3, 2018, respectively, which denied defendant Metro Electrical Contractors, Inc.'s motions to vacate the default and to set aside the inquest, unanimously affirmed, with costs.

Defendant failed to demonstrate both evidence of excusable default and a meritorious defense ( CPLR 5015[a] ; U.S. Bank N.A. v. Brown, 147 A.D.3d 428, 429, 46 N.Y.S.3d 107 [1st Dept. 2017] ). Although a court has discretion to treat a motion made under CPLR 5015(a) as having been made as well under CPLR 317, which does not require defendant to show reasonable excuse for its default, but only a showing of a meritorious defense, here defendant does not deny receiving the initial papers (see M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 531, 871 N.Y.S.2d 131 [1st Dept. 2009] ; cf. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). Defendant acknowledges that plaintiff served the summons and complaint on the Secretary of State, who then sent them to defendant. The papers, however, allegedly were misplaced by an agent of the office. This excuse is insufficient...