Giraldo v. Weingarten

• Decision Date: 22 February 2011
• Citation: 81 A.D.3d 885,917 N.Y.S.2d 577
• Parties: Edgar GIRALDO, et al., appellants, v. Fred WEINGARTEN, defendant, Koytcho Koev, et al., respondent.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 577
81 A.D.3d 885

Edgar GIRALDO, et al., appellants,
v.
Fred WEINGARTEN, defendant,
Koytcho Koev, et al., respondent.

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

Feb. 22, 2011.

Linda T. Ziatz, P.C., Ridgewood, N.Y., for appellants.

Gerber & Gerber, Brooklyn, N.Y. (Thomas Torto and Jason Levine of counsel), for respondent.

81 A.D.3d 885

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (McDonald, J.), dated July 30, 2010, which granted the motion of the defendant Koytcho Koev to vacate a judgment of the same court entered January 14, 2010, which, upon an order of the same court dated October 30, 2009, granting the plaintiffs' unopposed motion for leave to enter a judgment against the defendant Koytcho Koev upon his failure to appear or answer the complaint, is in their favor and against the defendant Koytcho Koev in the principal sum of $400,000.

81 A.D.3d 886

ORDERED that the order is reversed, on the law, the facts, and in the exercise of discretion, with costs, and the motion of the defendant Koytcho Koev to vacate the judgment is denied.

In support of that branch of the motion of the defendant Koytcho Koev (hereinafter the defendant) which was pursuant to CPLR 5015(a)(1) to vacate the judgment entered upon an order granting the plaintiffs' unopposed motion for leave to enter a judgment upon his failure to appear or answer the complaint, the defendant failed to demonstrate a reasonable excuse for his default in opposing the plaintiffs' motion and a potentially meritorious defense to the action ( see N.Y. SMS Waterproofing, Inc. v Congregation Machine Claim, Inc., 81 A.D.3d 617, --- N.Y.S.2d ---- [2d Dept.2011]; Bazoyah v. Herschitz, 79 A.D.3d 1081, 913 N.Y.S.2d 769; Campbell-Jarvis v. Alves, 68 A.D.3d 701, 889 N.Y.S.2d 257). Furthermore, the defendant did not offer any explanation for the six-month delay in moving to vacate the default judgment after he received it in the

917 N.Y.S.2d 578

mail ( see Alterbaum v. Shubert Org., Inc., 80 A.D.3d 635, 914 N.Y.S.2d 681 [2d Dept.2011]; Bekker v. Fleischman, 35 A.D.3d 334, 825 N.Y.S.2d 270; Epps v. LaSalle Bus, 271 A.D.2d 400, 705 N.Y.S.2d 388).

In support of that branch of his motion which was pursuant to CPLR 317 to vacate the default judgment, the defendant failed to demonstrate that he did not personally receive notice of the summons in time to defend the action ( see Thas v. Dayrich Trading,...