Hearst Mags. v R.h. & Partners, Inc. (2003 NY Slip Op 51496(U))

[*1]

Hearst Mags. v R.H. & Partners, Inc.

2003 NY Slip Op 51496(U)

Decided on December 2, 2003

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This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 2, 2003

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM J. DAVIS, J.P.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570151/03

HEARST MAGAZINES, A Division of Hearst Communications, Inc., Plaintiff-Respondent,

against

R.H. & PARTNERS, INC., RAY HAGAN & ASSOCIATES, INC. & RAY HAGAN, Defendants-Appellants.

Defendants appeal from an order of the Civil Court, New York County, entered November 9, 2001 (Karen S. Smith, J.) denying defendants' motion to vacate a default judgment.

PER CURIAM:

Order entered November 9, 2001 (Karen S. Smith, J.) affirmed, with $10 costs.

There was no abuse of discretion in the denial of defendants' motion to vacate the default judgment. Examination of the record establishes that defendants failed to answer, failed to appear at inquest, and defaulted on their own prior motion to vacate the judgment. Where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable (see, Village of Hempstead v Jablonsky, 283 AD2d 553 [2001]). Nor did defendant Ray Hagan raise a triable issue as to effective service upon a qualified person at his actual place of business (CPLR § 308[2]).

Defendants' failure to establish an excusable default renders moot their claim of a meritorious defense (see, Crespo v A.D.A. Management, 292 AD2d 5, 10 [2002]; Ortiz v [*2]Medina, 273 AD2d 9 [2000]), including Hagan's claim that he was not a proper party defendant.

This constitutes the decision and order of the court.