Youni Gems Corp.. v. Bassco Creations Inc.

• Decision Date: 09 February 2010
• Citation: 70 A.D.3d 454,896 N.Y.S.2d 315,2010 N.Y. Slip Op. 00907
• Parties: YOUNI GEMS CORP., et al., Plaintiffs–Appellants–Respondents,v.BASSCO CREATIONS INCORPORATED, Defendant,Efraim Basalel, et al., Defendants–Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 454

896 N.Y.S.2d 315

2010 N.Y. Slip Op. 00907

YOUNI GEMS CORP., et al., Plaintiffs–Appellants–Respondents,

v.BASSCO CREATIONS INCORPORATED, Defendant,Efraim Basalel, et al., Defendants–Respondents–Appellants.

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

Feb. 9, 2010.

Miller Law Office, PLLC, Lawrence (Eric D. Cherches of counsel), for appellants-respondents.Naidich Wurman Birnbaum & Maday, LLP, Great Neck (Robert P. Johnson of counsel), for respondents-appellants.TOM, J.P., ANDRIAS, FRIEDMAN, NARDELLI, CATTERSON, JJ.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered May 14, 2008, insofar as it denied defendants' motion to vacate a prior order striking their answer and counterclaim and a judgment entered against them following an inquest, unanimously affirmed, without costs. Plaintiff's appeal from so much of the order as granted defendants' application to stay certain eviction proceedings pending in New York City Civil Court, Queens County, pending the resolution of this appeal, unanimously dismissed, without costs, as academic.

The April 16, 2007 order striking defendants' answer and counterclaim for failure to comply with a prior discovery order and directing an inquest on the issue of plaintiffs' damages was the result of a contested motion on notice and therefore was directly appealable ( see Achampong v. Weigelt, 240 A.D.2d 247, 658 N.Y.S.2d 606 [1997]; Spatz v. Bajramoski, 214 A.D.2d 436, 624 N.Y.S.2d 606 [1995] ). Accordingly, defendants' motion, to the extent that it sought vacatur of the April 16, 2007 order was procedurally defective ( id.). Nevertheless, the procedural irregularity does not, under the circumstances, preclude a review of the April 16, 2007 order since defendants properly moved pursuant to CPLR 5015 to vacate their default at the inquest and the timely appeal from the denial of their motion to vacate the judgment brings up for review the April 16, 2007 order.

The court properly struck defendants' answer and counterclaim for their wilful failure to comply with the court's disclosure order ( see CPLR 3126[3] ). Defendants' wilfulness may be inferred from their failure to comply with the court's deadline, their failure to respond to plaintiffs' repeated efforts to obtain discovery until plaintiffs brought a second motion seven months later and their submission of responses to plaintiffs' interrogatories and document requests on the return date of the motion to strike that were incomplete and did not include relevant financial information ( see John R. Souto, Co. v. Coratolo, 293 A.D.2d 288, 739 N.Y.S.2d 708 [2002]; Gutierrez v. Bernard, 267 A.D.2d 65, 699 N.Y.S.2d 396 [1999]; Helms v. Gangemi, 265 A.D.2d 203, 696 N.Y.S.2d 441 [1999] ).

It is well settled that in order to vacate its default pursuant to CPLR 5015 a defendant must demonstrate both a reasonable excuse for the failure to appear and a meritorious defense ( see AWL Indus., Inc. v. QBE Ins. Corp., 65 A.D.3d 904, 905, 885 N.Y.S.2d 71 [2009]; Goldman v. Cotter, 10 A.D.3d 289, 291, 781 N.Y.S.2d 28 [2004] ). While law office failure may serve as an acceptable excuse for vacating a default, “bare allegations of incompetence on the part of prior counsel cannot serve as the basis to set aside a [default] pursuant to CPLR 5015” ( Spatz, 214 A.D.2d at 436, 624 N.Y.S.2d 606).

Defendants failed to establish a reasonable excuse for their default at the inquest. Their prior attorney's claimed medical reasons for failing to appear were not excusable given that defendants had contested the...