MYZAK v. ROSANIA (2024)

Order, Supreme Court, New York County (Barry Ostrager, J.), entered December 21, 2023, which denied defendant's motion to vacate an order, same court and Justice, entered on or about October 25, 2023, which granted plaintiff's motion for partial summary judgment entered against him on default, unanimously affirmed, with costs.  Appeal from October 25, 2023 order and judgment, same court and Justice, entered November 17, 2023, awarding plaintiff $6,534,082.19, unanimously dismissed, without costs.

The October 25, 2023 order and November 17, 2023 judgment were taken against defendant on default.  As such, no appeal lies therefrom (see Figiel v. Met Food, 48 A.D.3d 330, 330, 851 N.Y.S.2d 524 [1st Dept. 2008]).

As for the motion to vacate, the court did not abuse its discretion in finding that defendant failed to offer a reasonable excuse for the default.  Defendant did show that his fourth counsel was immediately responsible for the default.  However, each of the three preceding lawyers for defendant also engaged in a series of failures to litigate the case, including failing to respond to discovery, failure to meet and confer, failure to appear at conferences and, finally, failure to oppose summary judgment.  While law office failure can provide a reasonable excuse, that is not so where, as here, the default was part of a pattern of intentional conduct (see Spivey v. City of New York, 167 A.D.3d 487, 487, 87 N.Y.S.3d 890 [1st Dept. 2018], lv denied 35 N.Y.3d 936, 124 N.Y.S.3d 322, 147 N.E.3d 592 [2020]).