ACHAMPONG v. WEIGELT

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Supreme Court, Appellate Division, First Department, New York.

Emmanuel ACHAMPONG, Plaintiff-Appellant, v. Richard WEIGELT, et al., Defendants-Respondents.

Decided: June 12, 1997

Before MILONAS, J.P., and ELLERIN, NARDELLI and TOM, JJ. Soledad Rubert, for plaintiff-appellant. Marie Hodukavich, for defendants-respondents.

Order of the Supreme Court, Bronx County (Jerry Crispino, J.), entered September 18, 1995, which, inter alia, granted defendants' cross-motion for renewal of a prior motion to vacate a default, is unanimously reversed, on the law and facts, with costs and disbursements payable to plaintiff, and defendants' cross-motion is denied.

 In this case, the prior default motion was contested by defendants, who, thereafter, neither appealed nor moved for reargument/renewal within the statutory 30 day period pursuant to CPLR 5513.   We have previously noted:

Where, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicable, and the judgment predicated upon the party's default is therefore appealable (Marrocco v. Marrocco, 90 A.D.2d 989, 456 N.Y.S.2d 906).   The IAS Court therefore properly determined that the appellant's prior failure to take a timely appeal from entry of the contested judgment was fatal to the subsequent vacatur motion (Pergamon Press v. Tietze, 81 A.D.2d 831, 438 N.Y.S.2d 831).

(Spatz v. Bajramoski, 214 A.D.2d 436, 624 N.Y.S.2d 606).

 Motions for reargument/renewal of a contested motion also are required to be made within the same statutory period in which an appeal may be taken (Henegar v. Freudenheim, 40 A.D.2d 825, 337 N.Y.S.2d 280).   Since the defendants herein failed to either appeal or move to renew/reargue the order entered June 29, 1994 within the statutory period, the IAS Court erred in failing to deny the cross-motion to renew and in vacating the default.

 Moreover, to vacate a default judgment, a party must demonstrate both a meritorious defense and a reasonable excuse for the default (Arias v. Sanchez, 227 A.D.2d 284, 642 N.Y.S.2d 669).   While law office failure is an acceptable excuse for vacating a default (CPLR 2005), the conclusory assertion of misplacement of a file, the excuse offered herein by defendants for the delay in bringing the renewal motion, “is rarely an acceptable excuse” (Robinson v. New York City Transit Authority, 203 A.D.2d 351, 610 N.Y.S.2d 296).   Nor are “bare allegations of incompetence on the part of prior counsel” a basis to vacate a default (Spatz v. Bajramoski, supra, at 436, 624 N.Y.S.2d 606).   Accordingly, even if the motion were not untimely, the IAS Court improvidently exercised its discretion in vacating the default.

Motion to strike record on appeal and to impose sanctions denied.

MEMORANDUM DECISION.