Opinion
12116 Index No. 651784/18 Case No. 2019-04898
10-20-2020
George YAFFE, Plaintiff–Respondent, v. Martin SHKRELI, Defendant–Appellant.
Murphy Group CNY, PLLC, Syracuse (Brianne E. Murphy of counsel), for appellant. Guzov, LLC, New York (Debra J. Guzov of counsel), for respondent.
Murphy Group CNY, PLLC, Syracuse (Brianne E. Murphy of counsel), for appellant.
Guzov, LLC, New York (Debra J. Guzov of counsel), for respondent.
Kapnick, J.P., Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered May 13, 2019, which denied defendant's motion to vacate a default judgment entered against him, unanimously affirmed, with costs.
Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action because he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, i.e., himself (see Torres v. Harmonie Club of the City of N.Y., 122 A.D.3d 518, 519, 998 N.Y.S.2d 8 [1st Dept. 2014] ; Matter of Wynyard v. Antique Co. of N.Y., 247 A.D.2d 265, 668 N.Y.S.2d 617 [1st Dept. 1998] ). The affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose (see James v. Hoffman, 158 A.D.2d 398, 551 N.Y.S.2d 519 [1st Dept. 1990] ).
In any event, defendant's incarceration does not constitute a reasonable excuse for his default, given that he does not contest the receipt of service and he was afforded six months to respond to plaintiff's motion (see Matter of Commissioner of Social Servs. of the City of N.Y. v. Juan H.M., 128 A.D.3d 501, 9 N.Y.S.3d 246 [1st Dept. 2015] ). Nor did he demonstrate a meritorious defense by arguing that a subsequent consulting agreement with plaintiff's son, who is not a party to the sued-upon note, superseded his obligations to plaintiff under the note.
We have considered defendant's remaining arguments and find them unavailing.