Cheri Rest. Inc. v. Eoche

• Decision Date: 29 November 2016
• Citation: 144 A.D.3d 578,2016 N.Y. Slip Op. 07985,42 N.Y.S.3d 113
• Parties: CHERI RESTAURANT INC., et al., Plaintiffs–Respondents, v. Alain EOCHE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 578

42 N.Y.S.3d 113

2016 N.Y. Slip Op. 07985

CHERI RESTAURANT INC., et al., Plaintiffs–Respondents,

v.Alain EOCHE, Defendant–Appellant.

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

Nov. 29, 2016.

Siskopoulos Law Firm, LLP, New York (Alexandra Siskopoulos of counsel), for appellant.

Law Office of Suzan D. Sacks, Huguenot (Suzan D. Sacks of counsel), for respondents.

RENWICK, J.P., RICHTER, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 25, 2015, which, to the extent appealed from as limited by the briefs, denied defendant's motion to vacate an order, entered May 6, 2015 on default, strikinghis answer, and granted plaintiffs' cross motion for sanctions for making a frivolous motion, unanimously reversed, on the law and the facts, without costs, the motion granted, the cross motion denied, and the case remanded to Supreme Court for further proceedings, including a decision on the discovery issues raised in defendant's motion.

Defendant failed to respond to plaintiff's untimely discovery demands, appear for a scheduled deposition, or attend a scheduled compliance conference. By order entered May 6, 2015, the motion court issued an order on default, which, among other things, struck defendant's answer and directed the Clerk to place the case on the trial calendar for a hearing on damages. On May 8, 2015, defendant filed an order to show cause to vacate the order entered on default. On May 12, 2015, the motion court held oral argument on the order to show cause and ultimately refused to sign the order. The court also issued a written order, entered May 12, 2015, denying defendant's application on the record to vacate the order entered on default. On July 15, 2015, defendant moved by notice of motion to vacate or modify the default order, the denial of which is before us on this appeal.

Defendant properly moved by notice of motion to vacate the order entered on default, and the denial of that motion is an order appealable as of right (see CPLR 5701[a][3] ; Blonder & Co., Inc. v. Citibank, N.A., 28 A.D.3d 180, 187, 808 N.Y.S.2d 214 [1st Dept.2006] ). The prior orders granting a default and striking the answer, refusing to sign the order to show cause, and denying defendant's application were not orders appealable as of right (CPLR 5511 [order entered on default]; see also 5701[a] [appeals as of right]; Kalyanaram v. New York Inst. of Tech., 91 A.D.3d 532, 532, 936 N.Y.S.2d 543 [1st Dept.2012] [order that does not determine a motion made on notice] ). Moreover, since there was no prior motion to vacate the order entered on default, the July 15, 2015 motion to vacate cannot be construed as a motion to reargue and was not identified as such (see CPLR 2221 ), and the motion court's conclusion that the motion to vacate was an untimely motion to reargue was in error. Thus the motion court also erred in granting plaintiffs' cross motion for sanctions for the filing of a frivolous motion.

“To obtain relief from a default judgment, a party is required to demonstrate both a reasonable excuse for the default and a meritorious claim or defense to the action” (Bobet v. Rockefeller Ctr., N., Inc., 78 A.D.3d 475, 475, 911 N.Y.S.2d 43 [1st Dept.2010] ; see also CPLR 5015[a][1] ). Here, defendant has adequately demonstrated a reasonable excuse, namely, “inadvertent law office failure” (Cruz v. Bronx Lebanon Hosp. Ctr., 73 A.D.3d 597, 598, 905 N.Y.S.2d 135 [1st Dept.2010] ). Defendant's new counsel, in an affirmation submitted to the motion court, stated that there was a misunderstanding between her and defendant's former counsel, and that she was unaware of the scheduled...