HEIDARI v. FIRST ADVANCE FUNDING CORP (2008)

In an action to impress an equitable mortgage upon real property owned by the defendant N.Y. Pride Holdings, Inc., and to recover the proceeds of a loan, the defendants First Advance Funding Corp., N.Y. Pride Holdings, Inc., and Esmaeil Hosseinipour appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated August 21, 2007, as denied their motion to vacate a prior order of the same court dated May 30, 2007, granting the plaintiff's motion for a preliminary injunction upon their default in opposing the motion, to vacate their default in appearing or answering the complaint, and for leave to serve a late answer nunc pro tunc.

ORDERED that the order dated August 21, 2007, is affirmed insofar as appealed from, with costs.

 In seeking to vacate their default in appearing or answering the complaint, the appellants were required to demonstrate a reasonable excuse for their default and a meritorious defense to the action (see CPLR 5015[a] [1];  Fekete v. Camp Skwere, 16 A.D.3d 544, 792 N.Y.S.2d 127;  Caputo v. Peton, 13 A.D.3d 474, 787 N.Y.S.2d 92;  Glibbery v. Cosenza & Assoc., 4 A.D.3d 393, 771 N.Y.S.2d 401).   The excuse offered by the appellants' attorney failed to adequately explain the default in serving a timely answer.   The alleged error, counsel's neglect to give the summons and complaint to his assistant to open a file, cannot account for the more than three-month delay in serving an answer when counsel had full knowledge of the action (see Ortega v. Bisogno & Meyerson, 38 A.D.3d 510, 511, 831 N.Y.S.2d 259;  Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 553-554, 725 N.Y.S.2d 76;  De Vito v. Marine Midland Bank, 100 A.D.2d 530, 531, 473 N.Y.S.2d 218).   Furthermore, the appellants failed to demonstrate a meritorious defense to the action.   Accordingly, those branches of the appellants' motion which were to vacate their default in appearing or answering and for leave to serve a late answer nunc pro tunc were properly denied.

 Moreover, the defendants failed to demonstrate that they had a meritorious opposition to the plaintiff's motion for a preliminary injunction (see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166;  Ocean Club v. Incorporated Vil. of Atl. Beach, 6 A.D.3d 593, 774 N.Y.S.2d 807;  Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 582 N.Y.S.2d 746).   Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was to vacate the order dated May 30, 2007, granting the plaintiff's motion for a preliminary injunction upon the appellants' default in opposing the motion (see Joseph v. GMAC Leasing Corp., 44 A.D.3d 905, 843 N.Y.S.2d 691;  St. Rose v. McMorrow, 43 A.D.3d 1146, 842 N.Y.S.2d 534).