Opinion
2018–14484 Index No. 619913/17
05-13-2020
ELDERCO, INC., Appellant, v. KNESKI AND SONS, INC., Respondent.
Somer Estrin (Law Offices of Gabriele A. Shakeri, PLLC, Port Jefferson, NY, of counsel), for appellant.
Somer Estrin (Law Offices of Gabriele A. Shakeri, PLLC, Port Jefferson, NY, of counsel), for appellant.
WILLIAM F. MASTRO, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated October 24, 2018. The order granted the defendant's motion pursuant to CPLR 5015(a)(1) to vacate an order and judgment (one paper) of the same court entered April 11, 2018, which granted the plaintiff's unopposed motion for leave to enter a default judgment against it in the principal sum of $15,000.
ORDERED that the order dated October 24, 2018, is reversed, on the law, with costs, and the defendant's motion is denied.
The plaintiff commenced this action, inter alia, to recover damages for the defendant's alleged breach of contract. The plaintiff served the defendant by personally delivering a copy of the summons and verified complaint to the defendant's president at the defendant's principal place of business. After the defendant failed to answer or appear, the plaintiff moved for leave to enter a default judgment. The Supreme Court granted the plaintiff's unopposed motion in an order and judgment (one paper) entered April 11, 2018. The defendant subsequently moved to vacate the order and judgment entered April 11, 2018. In an order dated October 24, 2018, the court granted the defendant's motion, and the plaintiff appeals.
A defendant seeking to vacate a default in answering a complaint must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015[a][1] ; U.S. Bank N.A. v. Crawford, 174 A.D.3d 762, 763, 105 N.Y.S.3d 536 ; US Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278 ). Here, the defendant's proffered excuse that its president failed to open and review the contents of a package following its personal delivery upon him, and that the summons and verified complaint may inadvertently have been discarded thereafter, were insufficient to demonstrate a reasonable excuse for the default (see Matter of Colagioia v. Colagioia, 129 A.D.3d 955, 956, 10 N.Y.S.3d 618 ; Kranenburg v. Butwell, 34 A.D.3d 1005, 1006, 825 N.Y.S.2d 163 ; Mjahdi v. Maguire, 21 A.D.3d 1067, 1068, 802 N.Y.S.2d 700 ).
As the defendant failed to demonstrate a reasonable excuse for its default in answering the complaint, it is unnecessary to determine whether it sufficiently demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Dedomenico, 162 A.D.3d at 964, 80 N.Y.S.3d 278 ).
MASTRO, J.P., CONNOLLY, BRATHWAITE NELSON and WOOTEN, JJ., concur.