Cotter v. Dukharan
| Decision Date | 24 October 2013 |
| Parties | David COTTER, Respondent, v. Dhanwattie DUKHARAN et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
110 A.D.3d 1331
973 N.Y.S.2d 494
2013 N.Y. Slip Op. 06925
David COTTER, Respondent,
v.
Dhanwattie DUKHARAN et al., Appellants, et al., Defendant.
Supreme Court, Appellate Division, Third Department, New York.
Oct. 24, 2013.
[973 N.Y.S.2d 495]
Flink Smith, LLC, Albany (Paul J. Campito of counsel), for appellants.
Phillips Lytle, LLP, Albany (Marc H. Goldberg of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN Jr., JJ.
STEIN, J.
Appeal from an order of the Supreme Court (Aulisi, J.), entered October 31, 2012 in Schenectady County, which denied a motion by defendants Dhanwattie Dukharan and Roopnarian Dukharan to vacate a default judgment entered against them.
In 2007, plaintiff commenced this action against defendants Dhanwattie Dukharan and Roopnarian Dukharan (hereinafter collectively referred to as defendants) and their daughter, defendant Rosetta Dukharan, to recover damages for injuries that he sustained when he was bitten by their dog. Defendants were served with a copy of the summons and complaint pursuant to CPLR 308(2). Defendants failed to appear and Supreme Court (J. Sise, J.) entered an order finding them in default pursuant to CPLR 3215. Following a subsequent inquest, Supreme Court (Aulisi, J.) issued a judgment in March 2009 awarding plaintiff damages. In April 2010, defendants moved to vacate the default judgment, alleging that they never received the summons and complaint and were otherwise unaware that an action had been commenced against them. Upon Supreme Court's denial of defendants' motion, this appeal ensued.1
We affirm. “[A] party seeking to vacate a default judgment must demonstrate a reasonable excuse for default and a meritorious defense” ( Capital Compost & Waste Reduction Servs., LLC v. MacDonald, 73 A.D.3d 1311, 1312, 900 N.Y.S.2d 790 [2010] [internal quotation marks and citation omitted]; seeCPLR 5015[a][1]; Wadsworth v. Sweet, 106 A.D.3d 1433, 1434, 966 N.Y.S.2d 584 [2013];Matter of Toyota Motor Credit Corp. v. Impressive Auto Ctr., Inc., 80 A.D.3d 861, 862, 915 N.Y.S.2d 657 [2011] ), and the determination of whether vacatur is warranted lies within the sound discretion of the trial court ( see Wadsworth v. Sweet, 106 A.D.3d at 1434, 966 N.Y.S.2d 584;Abel v. Estate of Collins, 73 A.D.3d 1423, 1424, 901 N.Y.S.2d 749 [2010];
[973 N.Y.S.2d 496]
F & K Supply, Inc. v. Shean, 56 A.D.3d 1076, 1077, 869 N.Y.S.2d 257 [2008] ). Here, defendants' proffered excuse for the default was their conclusory denial...
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