Arctic Glacier USA, Inc. v Good Enough To Eat Uptown, Ltd.

[*1] Arctic Glacier USA, Inc. v Good Enough To Eat Uptown, Ltd. 2017 NY Slip Op 51321(U) Decided on October 5, 2017 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Gonzalez, JJ.
570357/17

Arctic Glacier USA, Inc., a subsidiary of Arctic Glacier, LLC, as assignee of Icesurance, Inc., a subsidiary of Arctic Glacier, Inc., d/b/a Saxony Ice Co., Plaintiff-Appellant,

against

Good Enough To Eat Uptown, Ltd. d/b/a Good Enough To Eat and Carrie Levin, Defendants-Respondents.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered April 21, 2016, which granted defendants' motion to vacate a default judgment and (2) an order (same court and Judge) entered November 14, 2016, which, upon reargument, adhered to the prior determination.

Per Curiam.

Order (Paul A. Goetz, J.) entered November 14, 2016, reversed, with $10 costs, defendants' motion denied, and default judgment reinstated. Appeal from order (Paul A. Goetz, J.), entered April 21, 2016, dismissed, without costs, as academic.

To vacate the default judgment, defendants were required to show a reasonable excuse for the default and a meritorious defense (see John Harris P.C. v Krauss, 87 AD3d 469 [2011]). Civil Court improvidently exercised its discretion in finding that defendants made these showings. Defendants failed to demonstrate a reasonable excuse for the default. The excuse proffered by defendants' counsel that defendant Carrie Levin, as guarantor and a principal of the corporate defendant, was not served with process until the additional notice required by CPLR 3215(g)(3)(i) was served upon her at her place of residence, was not supported by an affidavit of a person with personal knowledge (see Lopez-Reyes v Heriveaux, 144 AD3d 486 [2016]).

Defendants also failed to demonstrate a meritorious defense. No personal affidavit was submitted by defendants setting forth facts contesting plaintiff's causes of action. The affirmation submitted by defendants' counsel, who had no personal knowledge of the facts, was insufficient to show a meritorious defense (see Peacock v Kalikow, 239 AD2d 188, 190 [1997]). Nor did the proposed answer, verified by defendants' counsel upon information and belief, [*2]constitute an affidavit of merit (see CPLR 105[u]; CPLR 3020).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 05, 2017