                             State of New York
                      Supreme Court, Appellate Division
                          Third Judicial Department
Decided and Entered: December 8, 2016                      522301
________________________________

135 BOWERY LLC,
                        Respondent,
        v                                      MEMORANDUM AND ORDER

10717 LLC,
                    Appellant,
                    et al.,
                    Defendant.
________________________________


Calendar Date:      October 19, 2016

Before:      Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                                __________


      Lindenbaum & Young PC, Long Island City (Catherine P.
McGovern of counsel), for appellant.

      Stein Riso Mantel McDonough, LLP, New York City (Gerard A.
Riso of counsel), for respondent.

                                __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Schick, J.),
entered February 9, 2015 in Sullivan County, which denied a
motion by defendant 10717 LLC to vacate a default judgment
entered against it.

      In July 2011, plaintiff commenced this action seeking to
impose a constructive trust upon certain real property located in
the Town of Thompson, Sullivan County. Specifically, plaintiff
alleged that Alan Young1 and Charles Petri, who were – at all


    1
            Young died in March 2011.
                              -2-                522301

times relevant – the owners of defendant 10717 LLC (hereinafter
defendant), misappropriated $1.8 million from plaintiff and used
such funds to acquire the subject parcels.2 Following joinder of
issue, plaintiff moved for summary judgment seeking, among other
things, the imposition of a constructive trust and a declaration
that defendant had no right, title or interest in the properties
at issue. Plaintiff's motion was returnable on March 23, 2012,
and defendant's papers in opposition were due on or before March
16, 2012. Prior to the return date, however, defendant filed for
bankruptcy, thereby triggering an automatic stay. Numerous
adjournments of the return date were granted during the pendency
of the automatic stay but, after defendant's bankruptcy petition
was dismissed, the return date of plaintiff's summary judgment
motion was set for August 30, 2013.

      On August 28, 2013, Petri sent a letter to Supreme Court
(Cahill, J.), wherein he indicated that he was appearing "[p]ro
[s]e" on behalf of defendant and requested an adjournment in
order to allow defendant "sufficient time to retain counsel and
respond to the [m]otion." Plaintiff opposed that request, noting
that it had duly served defendant's attorney of record, Ronald
Litchman, with the subject motion and that Petri, who was not an
attorney, could not – consistent with the provisions of CPLR 321
(a) – properly appear on behalf of defendant. Supreme Court
granted defendant's request and adjourned the return date until
October 4, 2013.

      Defendant did not file any papers in opposition to
plaintiff's motion for summary judgment or otherwise respond
thereto by the return date. Instead, on that date, Litchman
transmitted to Supreme Court a substitution of counsel form


    2
        Plaintiff also commenced a related action in New York
County against, among others, defendant, Petri, the executors of
Young's estate and Robert Young (a licensed attorney and Young's
brother) seeking money damages for the same allegedly fraudulent
scheme. After defendant failed to respond to the complaint in
that action, a default judgment was entered against it (135
Bowery LLC v Sofer, 2016 NY Slip Op 31012[U], *22 [Sup Ct, NY
County 2016]).
                              -3-                522301

purporting to designate Petri as counsel of record for defendant.
Three days later, Petri apparently sent a "voluminous
communication" to Supreme Court seeking an additional 60-day
adjournment. Supreme Court denied the requested adjournment and
returned what it deemed to be defendant's ex parte submission.
Thereafter, by order entered December 17, 2013, Supreme Court
granted plaintiff's motion for summary judgment upon defendant's
default.

      In March 2014, defendant moved by order to show cause
seeking to vacate the default judgment entered against it,
contending that it had a reasonable excuse for failing to respond
to plaintiff's motion – namely, a lack of counsel – as well as a
meritorious defense to the action. Supreme Court (Schick, J.)
denied defendant's request finding, among other things, that
defendant was "derelict in timely acquiring counsel" to represent
it for the purpose of responding to plaintiff's motion. This
appeal by defendant ensued.

      We affirm. "A party seeking to vacate a judgment of
default must demonstrate a reasonable excuse for the default and
the existence of a meritorious defense" (Passeri v Tomlins, 141
AD3d 816, 817 [2016] [citations omitted]; see CPLR 5015 [a] [1];
Hayes v Village of Middleburgh, 140 AD3d 1359, 1361-1362 [2016];
Rutnik & Corr CPA's, P.C. v Guptill Farms, Inc., 127 AD3d 1531,
1531 [2015]). Further, whether to vacate a default judgment is a
determination that lies within the sound discretion of the trial
court, "subject to reversal only where there has been a clear
abuse of that discretion" (Hayes v Village of Middleburgh, 140
AD3d at 1362 [internal quotation marks and citations omitted];
see Doane v Kiwanis Club of Rotterdam, N.Y., Inc., 128 AD3d 1309,
1310 [2015]). We discern no abuse of that discretion here.

      Defendant's present assertion – that it was confused
regarding or otherwise was unaware of the need to be represented
by a licensed attorney – is belied by the record. Notably,
Petri's August 28, 2013 request for an adjournment was sought for
the express purpose of affording defendant "sufficient time to
retain counsel" to respond to plaintiff's motion for summary
judgment. Despite the fact that Supreme Court (Cahill, J.)
granted defendant a five-week adjournment for that very purpose,
                              -4-                522301

defendant failed to do so. Instead, on the return date of the
motion, Litchman, who was counsel of record at the time that
defendant's answer was filed, transmitted a substitution of
counsel form that purported to designate Petri – a layperson – as
counsel of record. Three days after defendant already had
defaulted on plaintiff's motion, Petri transmitted various
documents to Supreme Court and requested another 60-day
adjournment. One week after Supreme Court denied the requested
stay/adjournment (and nearly three weeks after the October 4,
2013 return date), Petri again sought another "60-day stay on the
written [motion] so that [he could] attempt to find new counsel
or be prepared to respond to the pending motion pro se."

      Given defendant's repeated failures to obtain counsel
despite ample opportunity to do so, Supreme Court (Schick, J.)
acted well within its discretion in concluding that defendant
indeed was aware of the pending motion "but was derelict in
timely acquiring counsel" to oppose plaintiff's motion for
summary judgment.3 Indeed, "[a] corporate defendant's failure to
comply with CPLR 321 provides no basis for vacating a judgment
entered against that defendant, since the rule is not intended to
penalize an adverse party for the corporation's improper
appearance, but is rather to ensure that the corporation has a
licensed representative who is answerable to the court and other
parties for his or her own conduct in the matter" (Jimenez v
Brenillee Corp., 48 AD3d 351, 352 [2008] [internal quotation
marks and citations omitted]; see Pisciotta v Lifestyle Designs,
Inc., 62 AD3d 850, 853 [2009]; Lake George Park Commn. v
Salvador, 245 AD2d 605, 607 [1997], lv dismissed and denied 91
NY2d 939 [1998]). Accordingly, defendant's failure to retain
counsel prior to the return date of the motion did not constitute
a reasonable excuse for its default. Absent a reasonable excuse,
we need not consider whether defendant proffered a potentially


    3
        In this regard, the record reflects that defendant was
represented by Litchman at the time that its answer was
interposed, was represented by counsel during the course of the
bankruptcy proceeding and was represented by Robert Young on the
motion to vacate, thereby evidencing defendant's access to and
ability to retain counsel.
                              -5-                  522301

meritorious defense (see Federal Natl. Mtge. Assn. v Zapata, 143
AD3d 857, 858 [2016]; Rutnik & Corr CPA's, P.C. v Guptill Farms,
Inc., 127 AD3d at 1532), nor do we find it necessary to address
plaintiff's alternative grounds for affirmance.

     Peters, P.J., Garry, Rose and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
