| PCA Acquisitions V, LLC v Vasser |
| 2023 NY Slip Op 51242(U) [81 Misc 3d 128(A)] |
| Decided on October 6, 2023 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Jenner & Block, LLP (Stephen L. Ascher and Sarah Atkinson of counsel), for appellant. Kirschenbaum & Phillips, P.C. (Ira R. Sitzer and Love Ahuja of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Matthew P. Blum, J.), entered October 27, 2022. The order denied defendant's motion to vacate an order dated May 11, 2022 which granted plaintiff's unopposed motion to strike defendant's answer.
ORDERED that the order is affirmed, without costs.
In this action to recover for breach of a credit card agreement and upon an account stated, plaintiff's motion, pursuant to CPLR 3126, to strike defendant's answer was conditionally granted by order entered May 11, 2022 after defendant failed to oppose the motion or appear in court on the motion's return date. Defendant subsequently made the instant motion to vacate the May 11, 2022 order and, upon such vacatur, for leave to amend the answer, which motion the Civil Court (Matthew P. Blum, J.) denied by order entered October 27, 2022.
A party seeking to vacate an order entered upon her failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Ahmed v Ahmed, 175 AD3d 1363 [2019]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2012]; Karamuco v Cohen, 90 AD3d 998 [2011]; Donovan v Chiapetta, 72 AD3d 635 [2010]). The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Karamuco v Cohen, 90 AD3d 998; Donovan v [*2]Chiapetta, 72 AD3d at 636; Zarzuela v Castanos, 71 AD3d 880 [2010]).
We agree with the Civil Court that defendant failed to set forth a reasonable excuse for her default in opposing plaintiff's motion. Although defendant claimed that she did not receive plaintiff's motion papers, her mere denial of receipt was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt arising from that proof (see CPLR 5015 [a] [1]; Caprio v 1025 Manhattan Ave. Corp., 63 AD3d 656 [2009]). As defendant failed to demonstrate a reasonable excuse for her default, we need not consider whether she proffered a potentially meritorious opposition to the motion (see Alvarez v Dedvukaj Constr., Inc., 138 AD3d 900 [2016]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.