Kurtz v. Mitchell

• Decision Date: 28 March 2006
• Docket Number: 2005-01183.
• Citation: 2006 NY Slip Op 02338,27 A.D.3d 697,810 N.Y.S.2d 913
• Parties: RICHARD KURTZ, Respondent, v. MICHAEL MITCHELL, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 697

810 N.Y.S.2d 913

2006 NY Slip Op 02338

RICHARD KURTZ, Respondent, v. MICHAEL MITCHELL, Appellant, et al., Defendant.

2005-01183.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 28, 2006.

In an action to recover damages for breach of contract and an account stated, the defendant Michael Mitchell appeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated December 13, 2004, which denied his motion to vacate a judgment of the same court entered July 19, 2004, upon his default in answering, in favor of the plaintiff and against him in the principal sum of $400,000.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the default judgment. To vacate his default, the appellant was required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Caputo v Peton, 13 AD3d 474, 475 [2004]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]; Wyckoff Hgts. Med. Ctr. v Merchants Ins. Co. of N.H., 2 AD3d 841 [2003]). The appellant failed to present a reasonable excuse for the default (see Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]; Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Roussodimou v Zafiriadis, 238 AD2d 568, 568-569 [1997]).

In light of the appellant's failure to present grounds for vacatur of the default judgment, the plaintiff's failure to submit an affidavit of service of additional notice in compliance with CPLR 3215 (g) (3) (i) did not constitute a fatal defect (see Harkless v Reid, 23 AD3d 622 [2005]; Rothschild v Finkelstein, 248 AD2d 701, 701-702 [1998]).

Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.