

Whitestone Constr. Corp. v Nova Cas. Co. (2015 NY Slip Op 04845)





Whitestone Constr. Corp. v Nova Cas. Co.


2015 NY Slip Op 04845


Decided on June 10, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 10, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.


2014-00465
 (Index No. 8207/10)

[*1]Whitestone Construction Corp., respondent, 
vNova Casualty Company, et al., defendants, Aon Industries, Inc., also known as Aon Superstructure, LLC, et al., appellants.


John M. Stravato, Bethpage, N.Y., for appellants.
Goetz Fitzpatrick LLP, New York, N.Y. (Joel G. MacMull and Donald J. Carbone of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for breach of contract, the defendants Aon Industries, Inc., also known as Aon Superstructure, LLC, Aon Realty, LLC, and George Tritaris appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered September 5, 2013, which denied their motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated April 24, 2012, granting the plaintiff's motion, inter alia, for leave to enter a judgment against them upon their failure to appear at a status conference, to strike their answer for failure to comply with discovery orders, and directing an inquest on the issue of damages.
ORDERED that the order entered September 5, 2013, is affirmed, with costs.
In order to succeed on a motion to vacate a judgment entered upon their default in appearing at a status conference, and upon the striking of their answer for failure to comply with discovery orders, the appellants were obligated to demonstrate both a reasonable excuse for their defaults and a potentially meritorious defense to the underlying action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141). Although the disbarment of a party's attorney may constitute a valid excuse for a default (see Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1082; Uddaraju v City of New York, 1 AD3d 140, 141), here, the appellants' unsubstantiated claim that James Armenakis, who is, in fact, a disbarred attorney, was retained by them to act as their counsel, did not establish a reasonable excuse for their defaults. In any event, the appellants' conclusory allegation that they had no contractual relationship with the plaintiff was insufficient to establish a potentially meritorious defense to this action to recover damages for breach of contract (see Whitestone Constr. Corp. v Nova Cas. Co., _____ AD3d _____ [Appellate Division Docket No. 2013-03946; decided herewith]). Accordingly, the Supreme Court properly denied the appellants' motion pursuant to CPLR 5015(a)(1) to vacate an order dated April 24, 2012, granting the plaintiff's motion, inter alia, for leave to enter a judgment against them upon their failure to appear at a status conference, to strike their answer for failure to comply with discovery orders, and directing an inquest on the issue of damages.
.
RIVERA, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


