QRT Assoc., Inc. v Mouzouris

QRT Assoc., Inc. v Mouzouris 2007 NY Slip Op 04047 [40 AD3d 326] May 10, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

QRT Associates, Inc., et al., Appellants,
v
George Mouzouris et al., Defendants, and United Equities Company, Respondent.

—[*1] Labaton Sucharow & Rudoff LLP, New York (Mark S. Arisohn of counsel), for appellants.

Arent Fox PLLC, New York (Bernice K. Leber of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Charles E. Ramos, J.), entered October 26, 2006, which, inter alia, denied plaintiffs' application to vacate their default on defendant United Equities' motion for summary judgment, and dismissed the complaint, unanimously affirmed, with costs.

A default may not be vacated without demonstrating a reasonable excuse for the failure to respond and a meritorious cause of action (see Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [2006]). Even assuming that plaintiffs had a reasonable excuse for their default, they did not present an affidavit of merit or otherwise demonstrate any merit to their claims. United's relatively brief delay in submitting the order for settlement was excusable under the circumstances. Permitting plaintiffs to proceed with their action would have been "an exercise in futility" (Russell Kikenborg v New York City Health & Hosps. Corp., 291 AD2d 281 [2002], lv denied 98 NY2d 608 [2002], cert denied 537 US 1089 [2002]). Concur—Mazzarelli, J.P., Andrias, Saxe, Sweeny and Malone, JJ.