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Appraisals v. Prokop

Supreme Court, Appellate Division, Second Department, New York.
Oct 24, 2012
952 N.Y.S.2d 451 (N.Y. App. Div. 2012)

Opinion

2012-10-24

TAYLOR APPRAISALS, et al., respondents, v. Joseph W. PROKOP, appellant.

Joseph W. Prokop, Central Islip, N.Y., appellant pro se. Taylor Elderidge, P.C., Smithtown, N.Y. (J. David Eldridge of counsel), for respondents.


Joseph W. Prokop, Central Islip, N.Y., appellant pro se. Taylor Elderidge, P.C., Smithtown, N.Y. (J. David Eldridge of counsel), for respondents.

In an action, inter alia, to recover damages for breach of contract and on an account stated, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Spinner, J.), entered April 5, 2011, which denied his motion to vacate an order of the same court dated March 16, 2010, granting the plaintiffs' unopposed motion for summary judgment on the complaint, and is in favor of the plaintiffs and against him in the principal sum of $18,700.

ORDERED that the order and judgment is affirmed, with costs.

To vacate his default in opposing the plaintiffs' motion for summary judgment on the complaint, the defendant was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Walker v. Mohammed, 90 A.D.3d 1034, 934 N.Y.S.2d 854;Roche v. City of New York, 88 A.D.3d 978, 979, 931 N.Y.S.2d 533;Casali v. Cyran, 84 A.D.3d 711, 921 N.Y.S.2d 879;Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). “While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse” ( Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d 991, 992, 925 N.Y.S.2d 844;see Morrison v. Rosenberg, 278 A.D.2d 392, 392, 717 N.Y.S.2d 354;Cole–Hatchard v. Grand Union, 270 A.D.2d 447, 447, 705 N.Y.S.2d 605).

Here, the defendant's proffered excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default ( see Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d at 992, 925 N.Y.S.2d 844;Alberton Devs., Inc. v. All Trade Enterprs., Inc., 74 A.D.3d 1000, 902 N.Y.S.2d 403;Siculan v. Koukos, 74 A.D.3d 946, 947, 902 N.Y.S.2d 627;Chechen v. Spencer, 68 A.D.3d 801, 889 N.Y.S.2d 474). Furthermore, the defendant failed to demonstrate a potentially meritorious opposition to the plaintiffs' motion for summary judgment ( seeCPLR 3018[b]; Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 N.Y.2d 590, 596, 483 N.Y.S.2d 979, 473 N.E.2d 229;White Plains Cleaning Servs., Inc. v. 901 Props., LLC, 94 A.D.3d 1108, 1109, 942 N.Y.S.2d 636;Landau v. Weissman, 78 A.D.3d 661, 662, 913 N.Y.S.2d 107;Profex, Inc. v. Town of Fishkill, 65 A.D.3d 678, 883 N.Y.S.2d 912;Pothos v. Arverne Houses, 269 A.D.2d 377, 378, 702 N.Y.S.2d 392). Accordingly, the Supreme Court properly denied the defendant's motion to vacate the order dated March 16, 2010, which was entered upon his default in opposing the plaintiffs' motion for summary judgment on the complaint, and properly awarded judgment in favor of the plaintiffs and against the defendant in the principal sum of $18,700.

RIVERA, J.P., FLORIO, DICKERSON, LEVENTHAL and LOTT, JJ., concur.


Summaries of

Appraisals v. Prokop

Supreme Court, Appellate Division, Second Department, New York.
Oct 24, 2012
952 N.Y.S.2d 451 (N.Y. App. Div. 2012)
Case details for

Appraisals v. Prokop

Case Details

Full title:TAYLOR APPRAISALS, et al., respondents, v. Joseph W. PROKOP, appellant.

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

Date published: Oct 24, 2012

Citations

952 N.Y.S.2d 451 (N.Y. App. Div. 2012)
99 A.D.3d 985
2012 N.Y. Slip Op. 7099

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