Airtight Security Systems, Inc. v. 2350, LLC

May 14, 2014
Versions:117 A.D.3d 764
985 N.Y.S.2d 684
2014 NY Slip Op 3466

In an action to recover damages for breach of contract and on an account stated, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated March 6, 2012, which denied its motion, inter alia, to vacate an order of the same court dated October 11, 2011, granting that branch of the plaintiff‘s unopposed motion which was for summary judgment on the cause of action for an account stated and granting the plaintiff leave to enter a default judgment against it in the principal sum of $22,254.52.

Ordered that the order dated March 6, 2012, is affirmed, with costs.

In seeking to vacate the court‘s order granting the plaintiff‘s unopposed motion for summary judgment, the defendant was required to demonstrate a reasonable excuse for its default in opposing the motion and a meritorious opposition to the motion (see CPLR 5015 [a] [1]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]; see also Political Mktg., Int‘l, Inc. v Jaliman, 67 AD3d 661, 662 [2009]; Rubinfeld v County of Suffolk, 54 AD3d 1016, 1016 [2008]). Even if the defendant‘s excuse for its default is accepted as reasonable, the Supreme Court properly denied the motion on the ground that the defendant failed to establish that it had a meritorious opposition to the motion (see HSBC Bank USA N.A. v Wider, 101 AD3d 683, 684 [2012]; Taylor Appraisals v Prokop, 99 AD3d 985, 985-986 [2012]). Balkin, J.P., Roman, Sgroi and Miller, JJ., concur.

Motion by the respondent to strike pages 6 through 29 of the record on an appeal from an order of the Supreme Court, Suffolk County, dated March 6, 2012, on the ground that they include matter dehors the record. By decision and order on motion of this Court dated November 14, 2013, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that the motion is granted, and pages 6 through 29 of the record on appeal are stricken and have not been considered in the determination of this appeal. Balkin, J.P., Roman, Sgroi and Miller, JJ., concur.