Benson Park Associates, LLC v. Herman

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAZZARELLI
• Citation: Benson Park Associates, LLC v. Herman, 899 N.Y.S.2d 614, 73 A.D.3d 464 (N.Y. App. Div. 2010)
• Decision Date: 06 May 2010
• Parties: BENSON PARK ASSOCIATES, LLC, Plaintiff-Respondent, v. Alexander HERMAN, Defendant-Appellant.

899 N.Y.S.2d 614

73 A.D.3d 464

BENSON PARK ASSOCIATES, LLC, Plaintiff-Respondent,

v.Alexander HERMAN, Defendant-Appellant.

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

May 6, 2010.

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...