ABINGDON REALTY COMPANY LLC v. FINKELSHTEYN (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a sublease, the defendant appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated June 6, 2024.  The order denied those branches of the defendant's motion which were (1) pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated April 2, 2024, granting the plaintiff's unopposed motion, inter alia, pursuant to CPLR 3214 to compel the defendant to appear for a deposition and for sanctions, (2) in effect, to vacate a prior order of the same court dated February 7, 2024, granting the plaintiff's unopposed motion to restore the action to the calendar and to enlarge the time to file a note of issue, (3) for leave to renew the defendant's prior motion to enlarge the time to take his deposition, which had been denied in an order of the same court (Lawrence Knipel, J.) dated December 17, 2021, and (4) for a disability accommodation.

ORDERED that the order dated June 6, 2024, is affirmed, with costs.

In August 2008, the plaintiff sublessor executed a sublease with the defendant sublessee, which was renewed several times, for an apartment in a complex located in Brooklyn.  In December 2019, the plaintiff commenced this action against the defendant, inter alia, to recover damages for breach of the sublease and attorneys' fees.

In December 2021, the defendant moved to enlarge the time to take his deposition.  The plaintiff opposed the defendant's motion.  In an order dated December 17, 2021, the Supreme Court denied the defendant's motion.  Thereafter, the action was marked off the calendar.  In January 2024, the plaintiff moved to restore the action to the calendar and to enlarge the time to file a note of issue.  In an order dated February 7, 2024, the Supreme Court granted the plaintiff's unopposed motion, restored the action to the calendar, and directed that the defendant's deposition be held on or before May 1, 2024.

On March 15, 2024, the plaintiff moved, among other things, pursuant to CPLR 3214 to compel the defendant to appear for a deposition and for sanctions.  The motion was returnable on April 2, 2024.  The defendant's attorney submitted a letter application for an adjournment of the plaintiff's motion on March 25, 2024.  In the letter, the defendant's attorney stated that he was away on vacation from March 23, 2024, through April 2, 2024.  He further stated that the defendant had a “reasonable fear of attending an oral deposition given his medical condition” and that he had requested a disability accommodation with the Clerk of the Supreme Court.  The defendant did not submit opposition to the plaintiff's motion.  In an order dated April 2, 2024, the Supreme Court granted the plaintiff's unopposed motion.

The defendant thereafter moved, inter alia, (1) pursuant to CPLR 5015(a)(1) to vacate the order dated April 2, 2024, entered upon his default in opposing the plaintiff's prior motion, among other things, pursuant to CPLR 3214 to compel the defendant to appear for a deposition and for sanctions, (2) in effect, to vacate the order dated February 7, 2024, entered upon the defendant's default in opposing the plaintiff's prior motion to restore the action to the calendar and to enlarge the time to file a note of issue, (3) for leave to renew the defendant's prior motion to enlarge the time to take his deposition, and (4) for a disability accommodation for the defendant.  The plaintiff opposed the defendant's motion.  In an order dated June 6, 2024, the Supreme Court denied the defendant's motion.  The defendant appeals.

“A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Pawoor Kim v Xin Chen, 189 AD3d 1061, 1061–1062, 133 N.Y.S.3d 853;  see CPLR 5015[a][1];  Ki Tae Kim v Bishop, 156 AD3d 776, 777, 67 N.Y.S.3d 655).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, and the court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default at issue” (Seaman v New York Univ., 175 AD3d 1578, 1579, 109 N.Y.S.3d 150;  see Kondrotas–Williams v Westbridge Enters., Inc., 170 AD3d 983, 985, 97 N.Y.S.3d 127).

Here, the defendant failed to demonstrate a reasonable excuse for his default in opposing the plaintiff's prior motions.  The defendant's attorney sent a letter requesting an adjournment of the plaintiff's motion, inter alia, pursuant to CPLR 3214 to compel the defendant to appear for a deposition and for sanctions, because the defendant's attorney was on vacation from March 23, 2024, through April 2, 2024.  The letter was dated 10 days after the plaintiff's motion was served.  The defendant's assertion that his counsel needed more time to oppose the motion in light of the vacation does not constitute a reasonable excuse for his default (see Tlais v Cinozgumes, 189 AD3d 1293, 1294, 134 N.Y.S.3d 224;  U.S. Bank, N.A. v Essaghof, 178 AD3d 876, 878, 113 N.Y.S.3d 238).  Since the defendant failed to establish a reasonable excuse for his default, it is unnecessary to consider whether the defendant had a potentially meritorious opposition to the motion (see M. Marin Restoration, Inc. v Filasky, 219 AD3d 824, 826, 195 N.Y.S.3d 692;  Cox v Marshall, 161 AD3d 1140, 1141, 78 N.Y.S.3d 212).

“The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal” that determination, and a motion denominated as one for leave to renew an unopposed motion may be construed as one to vacate the default (BSD 253, LLC v Wilmington Sav. Fund Socy., FSB, 219 AD3d 900, 901, 194 N.Y.S.3d 328;  see U.S. Bank, N.A. v Blagman, 188 AD3d 1284, 1285, 136 N.Y.S.3d 393;  Matter of Renner v Costigan, 125 AD3d 664, 665, 4 N.Y.S.3d 53;  Dobbyn–Blackmore v City of New York, 123 AD3d 1083, 1084, 1 N.Y.S.3d 193).  Here, the defendant failed to demonstrate his entitlement to vacatur of the order dated February 7, 2024.  Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was denominated as one for leave to renew the order dated February 7, 2024, entered upon the defendant's default.

Pursuant to CPLR 2221(e), a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination,” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (id. § 2221[e][2], [3];  see Destino v Q Mgt. Props., LLC, 237 AD3d 1162, 1163, 233 N.Y.S.3d 636;  Castillo v 37–25 12th St., LLC, 237 AD3d 889, 891, 233 N.Y.S.3d 118).  “ ‘However, the requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ ” (NP162, LLC v Harding, 197 AD3d 479, 480, 153 N.Y.S.3d 37, quoting Citimortgage, Inc. v Espinal, 136 AD3d 857, 858, 26 N.Y.S.3d 541).  “ ‘A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation’ ” (Agostinacchio v Jofaz Transp., Inc., 238 AD3d 691, 693, 235 N.Y.S.3d 61, quoting Groman v Fleyshmakher, 221 AD3d 789, 790, 199 N.Y.S.3d 658;  see Seror v Clearview Operating Co., LLC, 235 AD3d 1023, 1025, 228 N.Y.S.3d 641).  Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was for leave to renew the defendant's prior motion to enlarge the time to take his deposition.

In light of the foregoing, the defendant's remaining contention is academic.

BRATHWAITE NELSON, J.P., VOUTSINAS, TAYLOR and GOLIA, JJ., concur.