ADL Constr., LLC v. Chandler

• Decision Date: 04 November 2010
• Citation: 78 A.D.3d 407,909 N.Y.S.2d 908
• Parties: ADL CONSTRUCTION, LLC, et al., Plaintiffs-Respondents, v. Keith CHANDLER, Defendant-Appellant, Ponce DeLeon Bank, Defendant-Respondent, Yehuda Kaploun, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 908

78 A.D.3d 407

ADL CONSTRUCTION, LLC, et al., Plaintiffs-Respondents,

v. Keith CHANDLER, Defendant-Appellant,Ponce DeLeon Bank, Defendant-Respondent,Yehuda Kaploun, et al., Defendants.

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

Nov. 4, 2010.

Danzig Fishman & Decea, White Plains (Peter F. Sisca of counsel), for appellant.

James T. Moriarty, New York, for ADL Construction, LLC and Dominick Cicale, respondents.

Codelia & Socorro, P.C., Bronx (Peter R. Shipman of counsel), for Ponce DeLeon Bank, respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about April 7, 2009, which denied defendant Chandler's motion to vacate his default in responding to plaintiffs' motion for summary judgment, unanimously affirmed, with costs.

Defendant failed to demonstrate a reasonable excuse for his default ( see CPLR 5015[a][1] ). After his bankruptcy court petition was dismissed, he was obligated to respond to plaintiffs' pending summary judgment motion, to obtain plaintiffs' consent to additional time for his response, or to seek additional time from the court. Defendant did nothing.

The record supports the court's conclusion, in light of defendant's other conduct, including his failure to make any attempt to vacate the default until almost a year later, that defendant's failure to respond tothe motion was willful and calculated to cause delay ( see e.g. Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 896 N.Y.S.2d 315 [2010]; Brown v. Suggs, 38 A.D.3d 329, 832 N.Y.S.2d 36 [2007] ).

There is no evidence to support defendant's claim that his default should have been vacated on the ground of fraud, misrepresentation or misconduct of an adverse party.

We have considered defendant's remaining arguments and find them unavailing.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, DeGRASSE, MANZANET-DANIELS, JJ., concur.