MARTUCCI v. LLC (2024)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered May 30, 2023, which denied defendant 500 W25th Owner LLC's (Owner) motion to vacate a default judgment, unanimously affirmed, without costs.

The Owner's motion seeking vacatur of the default was untimely.  Plaintiff served the order granting a default judgment with notice of entry on October 20, 2021.  Owner filed the motion to vacate on November 14, 2022, more than one year after the CPLR 5015(a)(1) statutory deadline, which mandated denial (see Mortgage Elecs. Registration Sys., Inc. v. Mercado, 194 A.D.3d 420, 421, 143 N.Y.S.3d 195 [1st Dept. 2021];  see also Carter v. Daimler Trust, 177 A.D.3d 541, 541, 110 N.Y.S.3d 841 [1st Dept. 2019];  Pina v. Jobar U.S.A., LLC, 104 A.D.3d 544, 545, 961 N.Y.S.2d 150 [1st Dept. 2013]).

Moreover, Owner failed to demonstrate a particularly compelling excuse for the default and establish a meritorious defense (see Johnson v. Sam Minskoff & Sons, Inc., 287 A.D.2d 233, 236, 735 N.Y.S.2d 503 [1st Dept. 2001]).  Owner's alleged reasonable excuse, that its insurer failed to assign counsel, is unavailing because the record shows that Owner was served with plaintiff's motion for a default judgment and notice of entry of the default judgment but did nothing to ensure that counsel was assigned to defend its interests (see Gecaj v. Gjonaj Realty & Mgt. Corp., 149 A.D.3d 600, 604, 51 N.Y.S.3d 74 [1st Dept. 2017]).

We have considered Owner's remaining contentions and find them unavailing.