SARVA v. CHAKRAVORTY (2005)

In an action to recover on a mortgage note, the defendants appeal from an order of the Supreme Court, Queens County (Dye, J.), dated November 19, 2003, which denied their motion, in effect, to vacate their default in opposing the plaintiffs' motion, inter alia, to restore the case to the active calendar.

ORDERED that the order is affirmed, with costs.

Although the Supreme Court erred in determining that the demand dated October 7, 1999, attached to the compliance conference order, and signed by the court and by the attorneys for both parties, did not constitute a valid 90-day demand (see CPLR 3216;  Vinikour v. Jamaica Hosp., 2 A.D.3d 518, 519, 767 N.Y.S.2d 873;  Aguilar v. Knutson, 296 A.D.2d 562, 747 N.Y.S.2d 517), we nonetheless affirm the order appealed from on a different ground.

The defendants moved, in effect, to vacate their default in opposing the plaintiffs' motion to restore the case to the active calendar.   Accordingly, the defendants were required to demonstrate a reasonable excuse for their default and a meritorious defense (see CPLR 5015[a][1];  Santiago v. New York City Health and Hosps. Corp., 10 A.D.3d 393, 780 N.Y.S.2d 764;  Spells v. A & P Supermarkets, 253 A.D.2d 422, 675 N.Y.S.2d 310;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 568-569, 657 N.Y.S.2d 66).   The defendants failed to set forth a reasonable excuse for their failure to oppose the motion.   Although the defendants' attorney claimed that he did not receive the plaintiffs' motion papers, his unsubstantiated excuse of non-receipt was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt (see Platonov v. Sciabarra, 305 A.D.2d 651, 759 N.Y.S.2d 883;  Matter of Aetna Life & Cas. Co. v. Walker, 255 A.D.2d 381, 382, 679 N.Y.S.2d 696;  European Am. Bank v. Abramoff, 201 A.D.2d 611, 612, 608 N.Y.S.2d 233).