Goldstein v Parcjay Apts. LLC

[*1] Goldstein v Parcjay Apts. LLC 2005 NYSlipOp 51269(U) Decided on July 28, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-897 K C

Bryan Goldstein, Appellant,

against

Parcjay Apartments LLC and Metropolitan Property Services, Inc., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered April 14, 2004, which denied plaintiff's motion for a default judgment.

Order unanimously modified (1) by providing that the branch of plaintiff's motion for leave to enter a default judgment against defendant Metropolitan Property Services, Inc. is granted, (2) by providing that the denial of the branch of plaintiff's motion for leave to enter a default judgment against defendant Parcjay Apartments LLC is without prejudice to renewal upon proper papers, and (3) by striking, without prejudice, the provision of the order which granted defendants leave to serve and file a late answer; as so modified, affirmed with $10 costs.

The record establishes that the time within which defendant Metropolitan Property Services, Inc. (MPS) could timely serve an answer expired prior to plaintiff's motion seeking leave to enter a default judgment (see CCA 402 [a]; 410 [a]). The opposing papers submitted by defendants failed to demonstrate that MPS possessed a reasonable excuse for its default (see Krieger v Cohan, 18 AD3d 823 [2005]; Hegearty v Ballee, 18 AD3d 706 [2005]; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516 [2005]; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 356 [2005]; Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]; Ennis v Lema, 305 AD2d 632 [2003]) and made no attempt to set forth a meritorious defense. Consequently, the branch of plaintiff's motion which sought leave to enter a default judgment against MPS should have been granted (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353, supra; Ennis v Lema, 305 AD2d 632, supra).

The branch of plaintiff's motion which sought leave to enter a default judgment against defendant Parcjay Apartments LLC (Parcjay) was properly denied inasmuch as plaintiff did not include an affidavit establishing compliance with CPLR 3215 (f), (g) (see Schilling v Maren [*2]Enters., 302 AD2d 375 [2003]). In any event, because Parcjay was not personally served with the summons, the time within which Parcjay was to serve its answer had not expired when plaintiff made his motion for leave to enter a default (see CCA 402 [b]; 409, 410 [b]). However, since Parcjay was in default when it submitted its opposing papers and, upon the record before us, failed to demonstrate a reasonable excuse for the default and made no attempt to set forth a meritorious defense, Parcjay is not entitled to be excused from the consequences of its default (see Thompson v Steuben Realty Corp., 18 AD3d 864 [2005]). Inasmuch as the record establishes that the papers submitted by plaintiff and Parcjay were deficient, and given the unusual circumstances presented, plaintiff is granted leave to renew upon proper papers and Parcjay may seek to have its default vacated upon proper papers.
Decision Date: July 28, 2005