SCHIRMER v. PIAZZA (2026)

DECISION & ORDER

In an action, inter alia, to set aside two deeds conveying real property and for partition of the subject property, the defendants Barbara Piazza, John Piazza, and the Estate of John F. Piazza appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated March 6, 2025.  The order, insofar as appealed from, denied those branches of those defendants' motion which were pursuant to CPLR 317 and 5015(a) to vacate an order of the same court dated March 1, 2024, granting the plaintiff's unopposed motion for leave to enter a money judgment against the defendants Barbara Piazza and John Piazza in the principal amount of $326,666.67, together with interest at the rate of nine percent per annum from May 16, 2013, and to transfer the action to the Superior Court of New Jersey for final disposition.

ORDERED that the order dated March 6, 2025, is affirmed insofar as appealed from, with costs.

John F. Piazza (hereinafter the decedent) passed away on December 20, 2012.  At the time of his death, the decedent owned certain real property located in Brooklyn (hereinafter the property).  The plaintiff's ward, Debra Piazza Shaefer (hereinafter Debra), the defendant Barbara Piazza (hereinafter Barbara), and the defendant John Piazza (hereinafter John) are the only children of the decedent.  In May 2013, Barbara and John executed a deed, as the purported sole surviving distributees of the decedent, conveying the property to themselves as joint tenants with the right of survivorship.  In August 2014, Barbara and John executed a deed, conveying the property to the defendant 81 Real Estate Corp., which encumbered the property with a mortgage in favor of the defendant Melrose Credit Union.  The plaintiff commenced this action, inter alia, to set aside the May 2013 and August 2014 deeds and for partition of the property.

In an order dated March 11, 2019, the Supreme Court, among other things, granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against Barbara, John, and the defendant Estate of John F. Piazza (hereinafter collectively the appellants) to the extent of deeming null and void the May 2013 and August 2014 deeds insofar as they purported to convey Debra's one-third interest in the property.  Thereafter, the plaintiff entered into a settlement agreement with 81 Real Estate Corp. and the successor in interest to Melrose Credit Union, wherein the plaintiff waived her right to contest the validity of the August 2014 deed conveying the property to 81 Real Estate Corp. and the mortgage in favor of Melrose Credit Union in exchange for the sum of $162,500.  The plaintiff then moved for leave to enter a money judgment against Barbara and John in the principal sum of $326,666.67, together with interest at a rate of nine percent per annum from May 16, 2013.  Barbara and John did not oppose or otherwise respond to the motion.  In an order dated March 1, 2024 (hereinafter the March 2024 order), the court granted the motion.

Thereafter, the appellants moved, inter alia, pursuant to CPLR 317 and 5015(a) to vacate the March 2024 order and to transfer the action to the Superior Court of New Jersey for final disposition.  In an order dated March 6, 2025, the Supreme Court, among other things, denied those branches of the motion.  This appeal ensued.

Initially, the appellants' contention that the March 2024 order should have been vacated pursuant to CPLR 317 is without merit, as there is no dispute that Barbara and John appeared in the action (see CPLR 317).

“A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Ki Tae Kim v Bishop, 156 AD3d 776, 777;  see CPLR 5015[a][1];  HSBC Bank USA, N.A. v Grinage, 244 AD3d 969, 971).  “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;  see CPLR 2005;  Ernest v St. Juste, 240 AD3d 667, 669).  “[M]ere neglect is not a reasonable excuse” (OneWest Bank, FSB v Singer, 153 AD3d 714, 716;  see Ernest v St. Juste, 240 AD3d at 669).

Here, appellants' attorney's conclusory and unsubstantiated assertion that some emails received from the Supreme Court were in an email folder other than his main inbox was insufficient to establish a reasonable excuse for Barbara's and John's default in opposing the plaintiff's motion for leave to enter a money judgment against them in the principal amount of $326,666.67, together with interest at the rate of nine percent per annum from May 16, 2013 (see Prakope v Pub. Stor., 186 AD3d 1738, 1739;  U.S. Bank, N.A. v Essaghof, 178 AD3d 876, 878).  Since the appellants failed to demonstrate a reasonable excuse for Barbara's and John's default, we need not consider whether they demonstrated the existence of a potentially meritorious opposition to the plaintiff's motion (see Ernest v St. Juste, 240 AD3d at 669;  CitiMortgage, Inc. v Ramlal, 238 AD3d 976, 978).

The appellants' remaining contentions are either improperly raised for the first time on appeal or without merit.

DILLON, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.