Arif Yurteri v Temel Artukmac

Yurteri v Artukmac 2006 NY Slip Op 02748 [28 AD3d 545] April 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Arif Yurteri, Appellant,
v
Temel Artukmac et al., Respondents.

—[*1]

In a hybrid action, inter alia, for a judgment declaring that the plaintiff is the owner of 50% of the outstanding shares of the defendant Fast Enterprises, Ltd., and a proceeding pursuant to Business Corporation Law § 1104-a for the dissolution of Fast Enterprises, Ltd., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 26, 2004, as, upon reargument, adhered to a prior determination in an order dated March 22, 2004 denying that branch of his motion which was pursuant to CPLR 5015 (a) (1) to vacate a prior order of the same court dated August 19, 2002 granting the defendants' motion for summary judgment dismissing the complaint upon his default in opposing the motion.

Ordered that the order dated July 26, 2004 is affirmed insofar as appealed from, with costs.

A party seeking to obtain relief from an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a meritorious defense to the motion (see CPLR 5015 [a] [1]; Matter of Phillips v Goord, 16 AD3d 422 [2005]; NYCTL 1998-2 Trust v Levin, 13 AD3d 595 [2004]; Costanza v Gold, 12 AD3d 551 [2004]; Melish v Melish, 267 AD2d 218 [1999]). Here, the plaintiff claimed, in essence, that the defendants' attorney misled his prior attorney into believing that the return date of the defendants' motion for summary judgment had been adjourned. However, the documentary evidence upon which the plaintiff relied did not substantiate this claim, and he offered no other explanation for his failure to oppose the defendants' motion. Thus, the plaintiff failed to demonstrate a reasonable excuse for his default. Furthermore, the plaintiff failed [*2]to establish the existence of a meritorious defense to the defendants' motion which was predicated, in part, upon the plaintiff's failure to comply with court-ordered disclosure. Accordingly, upon reargument, the Supreme Court properly adhered to its original determination denying that branch of the plaintiff's motion which was to vacate the order entered upon his default in opposing the defendants' motion for summary judgment (see Philippi v Metropolitan Transp. Auth., 16 AD3d 654 [2005]; NYCTL 1998-2 Trust v Levin, supra; Abrams v City of New York, 13 AD3d 566 [2004]; Lizardo v Midwest Automation, Inc., 13 AD3d 418 [2004]; Melish v Melish, supra). Prudenti, P.J., Krausman, Mastro and Fisher, JJ., concur.