| American Opera Musical Theater Co., Inc. v RussianHotline.com Inc. |
| 2023 NY Slip Op 51296(U) [81 Misc 3d 132(A)] |
| Decided on November 3, 2023 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 29, 2023; it will not be published in the printed Official Reports. |
Russian Hotline.Com. Inc., appellant pro se. David Wright Tremaine, LLP (Adam I. Rich of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered January 12, 2023. The order denied defendant's motion to vacate a judgment of that court entered September 22, 2022 upon defendant's failure to appear or answer the claim.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this small claims action to recover $10,000 for breach of contract. Upon defendant's failure to appear in this action, a default judgment was entered against it on September 22, 2022 in the sum of $10,031.66. In October 2022, defendant moved to vacate the default judgment. The Civil Court denied defendant's motion, finding that defendant had not established a reasonable excuse for failing to appear and had not set forth a potentially meritorious defense.
To prevail on its motion to vacate the judgment based on excusable default, defendant was required to demonstrate that there was a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Torres v DeJesus, 197 AD3d 1260 [2021]). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such a determination (see Green Apple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]). Here, we find no basis to disturb the Civil Court's [*2]determination that defendant failed to demonstrate a reasonable excuse for its default in appearing (see CPLR 5015 [a] [1]; Matter of Tony's Towing Serv., Inc. v Swarts, 109 AD3d 475, 477 [2013]; Daniels v Coney Mgt., LLC, 63 Misc 3d 133[A], 2019 NY Slip Op 50429[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Lane v Smith, 84 AD3d 746, 748 [2011]).
Accordingly, the order is affirmed.
BUGGS, J.P., MUNDY and HOM, JJ., concur.
ENTER: