Bazeli v. Azaz

• Decision Date: 25 September 2019
• Docket Number: Index No. 16099/14,2017–02319
• Citation: 175 A.D.3d 1474,106 N.Y.S.3d 906 (Mem)
• Parties: Vahed BAZELI, Appellant, v. Tamer AZAZ, et al., Defendants, Jennifer J. Azaz, Respondent.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1474

106 N.Y.S.3d 906 (Mem)

Vahed BAZELI, Appellant,

v. Tamer AZAZ, et al., Defendants,Jennifer J. Azaz, Respondent.

2017–02319

Index No. 16099/14

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

Argued - May 13, 2019

September 25, 2019

Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.

MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the appeal from so much of the order dated January 19, 2017, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order dated January 19, 2017, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff commenced this action against, among others, the defendant Jennifer J. Azaz (hereinafter Azaz) seeking the imposition of a constructive trust on certain assets. Azaz cross-moved to dismiss the complaint insofar as asserted against her and to vacate a notice of pendency. In an order dated August 17, 2016, the Supreme Court, inter alia, granted Azaz's cross motion upon the plaintiff's default in opposing the cross motion. The plaintiff then moved, inter alia, in effect, to vacate so much of the order dated August 17, 2016, as granted Azaz's cross motion. The Supreme Court denied the plaintiff's motion, and the plaintiff appeals.

We agree with the Supreme Court's determination to deny that branch of the plaintiff's motion which was, in effect, to vacate so much of the order dated August 17, 2016, as granted Azaz's cross motion. In order to vacate a default in opposing a motion, the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; New Century Mtge. Corp. v. Chimmiri, 146 A.D.3d 893, 894, 45 N.Y.S.3d 209 ). Although the plaintiff demonstrated a reasonable excuse for his default in opposing Azaz's cross motion (see Gately v. Drummond, 161 A.D.3d 947, 948, 77 N.Y.S.3d 519 ; Young Su Hwangbo v. Nastro, 153 A.D.3d 963, 965, 60 N.Y.S.3d 412 ), he failed to demonstrate a potentially meritorious opposition to the cross motion, as the complaint failed to state a cause of action against Azaz for the imposition of a constructive trust (see Seidenfeld v. Zaltz, 162 A.D.3d 929, 934–935, 80 N.Y.S.3d 311 ; Gaetano Dev. Corp. v. Lee, 121 A.D.3d 838, 839, 994...