Berardo v. Guillet

Tom, J.E, dissents in a memorandum as follows:

A motion to vacate a default judgment is addressed to the sound discretion of the court (Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832 [1987]), and no abuse thereof has been established here. Defendants failed to demonstrate both a reasonable excuse and a meritorious defense to warrant vacating their default (see Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454 [2010], Iv dismissed 15 NY3d 863 [2010]), which they attribute to their former counsel, Lawrence E. Deutsch, now deceased. Indeed, the record discloses that plaintiffs consented to two prior adjournments of their summary judgment motion, each of which was memorialized in a written stipulation signed by defendants’ current counsel. Defendants’ excuse that they had been misled by a purported oral agreement presumably obtained by Mr. Deutsch to adjourn the dispositive motion for a third time is unsubstantiated by the requisite stipulation (CFLR 2104) or a probative affirmation. It rests entirely on current counsel’s account of a conversation with the deceased attorney. Having obtained two prior adjournments upon written stipulation, counsel concedes that she had been informed by plaintiffs’ attorney that they would not consent to any further delay in the proceedings. Yet she now maintains that she was informed by Mr. Deutsch that he had obtained a further adjournment and that it had been obtained orally, despite the parties’ practice of memorializing stipulated adjournments in a signed writing. This contention is hearsay and must be discounted.

To the extent defendants urge that Mr. Deutsch was too sick to oppose the motion, such assertion is likewise devoid of evidentiary support (see Legend Travel & Tours, Inc. v Continental *461Airlines, Inc., 24 AD3d 112 [2005]; DeSimone v Barry, Bette & Led Duke, 252 AD2d 948 [1998]). There is no indication that any health issue sufficiently serious to impair his ability to represent defendants’ interests was evident to opposing counsel, present counsel or defendants themselves. Defendants reason post hoc ergo propter hoc that because Mr. Deutsch died in August 2008, his poor health was the cause of their default on May 5th. This suggestion is unsupported by medical evidence and conclusory.

Regarding a meritorious defense, contrary to defendants’ argument raised for the first time on appeal, a verdict exonerating them of liability in the prior wrongful death action in which certain corporate defendants were found to be liable for negligence, does not warrant application of the doctrine of res judicata in this action seeking to pierce the corporate veil of entities closely held by the individual defendants. The necessary elements of proof and evidence required in each of the two actions vary so materially as to preclude application of the doctrine in this action (see First Capital Asset Mgt. v N.A. Partners, 260 AD2d 179 [1999], Iv denied 93 NY2d 817 [1999]). Defendants’ contention that the complaint is insufficiently pleaded is also asserted for the first time on appeal. Contrary to that contention, evidentiary material viewed in conjunction with the pleadings, including deposition testimony of individual defendants/sole shareholders of defendant corporate entities, supports a finding that plaintiffs had indeed adequately pleaded a claim for piercing the corporate veil (see Simplicity Pattern Co. v Miami Tru-Color Off-Set Serv., 210 AD2d 24 [1994]; see also Forum Ins. Co. v Texarkoma Transp. Co., 229 AD2d 341 [1996]). Apart from defendants’ bald denial of the allegations of the complaint and counsel’s recitation that “the defendants have a meritorious defense,” the moving papers provided the motion court with no basis upon which to assess the merits of the purported defense.

While there is a preference in law that cases be decided on their merits, it does not dispense with the need for a reasonable excuse for a default in appearance and a meritorious defense to the action. While the preference may be invoked “where the proffered excuse is less than compelling” (Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [2002]), it has no application where the excuse is without evidentiary support and the merits of the defense are unstated. It is particularly inappropriate in a case such as this, in which plaintiffs have been obliged to make numerous applications to the courts in the attempt to overcome defendants’ dilatory tactics and evasive and obstructionist *462conduct during the two actions. Finally, it cannot be said that vacating defendants’ default would not result in prejudice to plaintiffs, whose attempt to collect on a judgment that was entered in August 2000 will be further delayed.

Accordingly, the order should be affirmed.