JMP Pizza, LLC v. 34th Street Pizza, LLC

Mar 6, 2013
Versions:104 A.D.3d 648
960 N.Y.S.2d 318

In an action, inter alia, to recover on a promissory note, the defendants appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 4, 2012, which denied their motion, in effect, pursuant to CPLR 5015 (a) to vacate their default in appearing or answering the complaint.

Ordered that the order is affirmed, with costs.

The defendants previously moved, inter alia, in effect, pursuant to CPLR 5015 (a) to vacate their default in appearing or answering the complaint, citing law office failure as their reasonable excuse (see CPLR 2005), and opposed the plaintiff‘s cross motion for leave to enter a default judgment against them on the issue of liability. The Supreme Court denied the defendants’ motion and granted the plaintiff‘s cross motion. Thereafter, the defendants again moved, in effect, pursuant to CPLR 5015 (a) to vacate their default in appearing or answering the complaint, citing law office failure as their reasonable excuse. The Supreme Court properly denied the defendants’ subsequent motion, in which they did not seek leave to renew or reargue, on the ground that the defendants were precluded from making a motion to vacate their default on the same ground raised in their prior motion (see 47 Thames Realty, LLC v Robinson, 85 AD3d 851, 852 [2011]; New York State Higher Educ. Servs. Corp. v Adeniyi, 72 AD3d 1387 [2010]; Bianco v Dougherty, 54 AD2d 681 [1976]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.