Carillon Nursing & Rehab. Ctr., LLP v. Fox

• Decision Date: 25 June 2014
• Citation: 118 A.D.3d 933,989 N.Y.S.2d 68,2014 N.Y. Slip Op. 04726
• Parties: CARILLON NURSING AND REHABILITATION CENTER, LLP, respondent, v. George FOX, et al., appellants.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 933
989 N.Y.S.2d 68
2014 N.Y. Slip Op. 04726

CARILLON NURSING AND REHABILITATION CENTER, LLP, respondent,
v.
George FOX, et al., appellants.

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

June 25, 2014.

Richard A. Kraslow, P.C., Melville, N.Y., for appellants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Eininger, LLP, Lake Success, N.Y. (Jordan A. Meisner of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

[989 N.Y.S.2d 69]

In an action, inter alia, to recover damages for fraud and breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Asher, J.), dated December 19, 2012, which denied their motion pursuant to CPLR 5015(a) to vacate a judgment of the same court entered March 29, 2012, upon an order of the same court dated October 4, 2011, granting the plaintiff's unopposed motion for leave to enter a default judgment, in favor of the plaintiff and against them in the principal sum of $52,458.96.

ORDERED that the order dated December 19, 2012, is affirmed, with costs.

In a so-ordered stipulation dated February 22, 2011, the Supreme Court directed the defendants to provide full and complete responses to the plaintiff's discovery demands by March 22, 2011, or the answer would be stricken. The defendants failed to comply with that stipulation, and the plaintiff moved for the entry of a default judgment, contending that the answer had been stricken pursuant to the stipulation. After granting the defendants' numerous requests to adjourn the return date of the motion, the motion was submitted without opposition, and the Supreme Court, in an order dated October 4, 2011, granted the motion and directed the plaintiff to submit proof of damages by affidavit. The Supreme Court entered a judgment on March 29, 2012, upon the plaintiff's submissions of proof of damages, in favor of the plaintiff and against the defendants in the principal sum of $52,458.96.

To vacate the judgment entered upon their failure to oppose the plaintiff's motion for the entry of a default judgment, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious defense to the motion ( see Oller v. Liberty Lines Tr., Inc., 111 A.D.3d 903, 904, 975 N.Y.S.2d 768;Schenk v. Staten Is. Univ. Hosp., 108 A.D.3d 661, 662, 969 N.Y.S.2d 519;Gross v. Johnson, 102 A.D.3d 921, 922, ...