Benson Park Associates, LLC v. Herman

Decision Date06 May 2010
Citation73 A.D.3d 464,899 N.Y.S.2d 614
CourtNew York Supreme Court — Appellate Division
PartiesBENSON PARK ASSOCIATES, LLC, Plaintiff-Respondent, v. Alexander HERMAN, Defendant-Appellant.

Alexander Herman, Brooklyn, appellant pro se.

Tsyngauz & Associates, P.C., New York (Yevgeny Tsyngauz of counsel), for respondent.

Order, Supreme Court, New York County (Martin Shulman, J.), entered September 17, 2009, which, in an action for legal malpractice arising out of defendant's representation of plaintiff in an action for breach of contract, denied defendant's motion to vacate a default judgment, unanimously affirmed, without costs.

In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v. Benson Park Assoc. LLC, 60 A.D.3d 826, 875 N.Y.S.2d 241 [2009] ).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense ( Mutual Mar. Off., Inc. v. Joy Const. Corp., 39 A.D.3d 417, 419, 835 N.Y.S.2d 88 [2007] ). The court properly denied defendant's third request for an adjournment of plaintiff's motion for partial summary judgment ( see Matter of Desmond K., 59 A.D.3d 240, 875 N.Y.S.2d 3 [2009], lv. denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235 [2009]; Treppeda v. Treppeda, 212 A.D.2d 592, 622 N.Y.S.2d 749 [1995] ). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages.

The court properly searched the record in granting plaintiff judgment in the amount that plaintiff was...

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32 cases
  • Hood v. Koziej
    • United States
    • New York Supreme Court — Appellate Division
    • June 21, 2016
    ...meritorious defense, and failed to explain why it took more than six months to seek this relief (see Benson Park Assoc., LLC v. Herman, 73 A.D.3d 464, 465, 899 N.Y.S.2d 614 [1st Dept.2010] ). However, plaintiff is entitled to an award of supplemental attorneys' fees and expenses for the per......
  • Lamberti v. Angiolillo
    • United States
    • New York Supreme Court — Appellate Division
    • May 6, 2010
  • Lockard v. Sopolsky
    • United States
    • New York Supreme Court — Appellate Division
    • March 29, 2011
    ...meritorious defense required to vacate a judgment on the ground of excusable default (CPLR 5015[a]; see Benson Park Assoc., LLC v. Herman, 73 A.D.3d 464, 465, 899 N.Y.S.2d 614 [2010] ). The record shows that she was represented by counsel, obtained multiple extensions of time to answer the ......
  • Tower Ins. Co. of N.Y. v. Citywide Interior Contractors, Inc.
    • United States
    • New York Supreme Court
    • September 21, 2011
    ...for the court to accept it. Citywide must show excusable default and meritorious defense (CPLR § 5015 [a] [1]; Benson Park Associates. LLC v. Herman, 73 A.D.3d 464 [1st Dept. 2010]). Although Citywide references a cross-motion to file a late answer, it made no such motion. Rather, this reli......
  • Request a trial to view additional results

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