YURTERI v. ARTUKMAC (2006)

In a hybrid action, inter alia, for a judgment declaring that the plaintiff is the owner of 50% of the outstanding shares of the defendant Fast Enterprises, Ltd., and a proceeding pursuant to Business Corporation Law § 1104-a for the dissolution of Fast Enterprises, Ltd., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 26, 2004, as, upon reargument, adhered to a prior determination in an order dated March 22, 2004, denying that branch of his motion which was pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated August 19, 2002, granting the defendants' motion for summary judgment dismissing the complaint upon his default in opposing the motion.

ORDERED that the order dated July 26, 2004, is affirmed insofar as appealed from, with costs.

 A party seeking to obtain relief from an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a meritorious defense to the motion (see CPLR 5015[a][1];  Matter of Phillips v. Goord, 16 A.D.3d 422, 790 N.Y.S.2d 709;  NYCTL 1998-2 Trust v. Levin, 13 A.D.3d 595, 786 N.Y.S.2d 351;  Costanza v. Gold, 12 A.D.3d 551, 784 N.Y.S.2d 380;  Melish v. Melish, 267 A.D.2d 218, 699 N.Y.S.2d 305).   Here, the plaintiff claimed, in essence, that the defendants' attorney misled his prior attorney into believing that the return date of the defendants' motion for summary judgment had been adjourned.   However, the documentary evidence upon which the plaintiff relied did not substantiate this claim, and he offered no other explanation for his failure to oppose the defendants' motion.   Thus, the plaintiff failed to demonstrate a reasonable excuse for his default.   Furthermore, the plaintiff failed to establish the existence of a meritorious defense to the defendants' motion which was predicated, in part, upon the plaintiff's failure to comply with court-ordered disclosure.   Accordingly, upon reargument, the Supreme Court properly adhered to its original determination denying that branch of the plaintiff's motion which was to vacate the order entered upon his default in opposing the defendants' motion for summary judgment (see Philippi v. Metropolitan Transp. Auth., 16 A.D.3d 654, 791 N.Y.S.2d 444;  NYCTL 1998-2 Trust v. Levin, supra;  Abrams v. City of New York, 13 A.D.3d 566, 786 N.Y.S.2d 323;  Lizardo v. Midwest Automation, Inc., 13 A.D.3d 418, 785 N.Y.S.2d 702;  Melish v. Melish, supra).