COUNSEL FINANCIAL SERVICES LLC PLAINTIFF RESPONDENT v. DAVID MCQUADE LEIBOWITZ AND DAVID MCQUADE LEIBOWITZ DEFENDANTS APPELLANTS

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

COUNSEL FINANCIAL SERVICES, LLC, PLAINTIFF-RESPONDENT, v. DAVID MCQUADE LEIBOWITZ, P.C. AND DAVID MCQUADE LEIBOWITZ, DEFENDANTS-APPELLANTS.

CA 10-01202

Decided: February 18, 2011

PRESENT:  SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. LAW OFFICE OF BRUCE S. ZEFTEL, BUFFALO (BRUCE S. ZEFTEL OF COUNSEL), FOR DEFENDANTS-APPELLANTS. PHILIP B. ABRAMOWITZ, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendants appeal from an order denying their motion seeking to vacate a default order and judgment entered against them following their failure to oppose plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213.   On a prior appeal, we affirmed the default order and judgment that granted plaintiff's motion and ordered defendants to pay a specified amount due on a promissory note executed by defendant David McQuade Leibowitz, P.C. and personally guaranteed by defendant David McQuade Leibowitz (Counsel Fin. Servs., LLC v David McQuade Leibowitz, P.C., 67 AD3d 1483).   Even assuming, arguendo, that the default order and judgment may be vacated pursuant to CPLR 5015(a)(1) despite defendants' prior appeal (see Pergamon Press v. Tietze, 81 A.D.2d 831, lv dismissed 54 N.Y.2d 605;  Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6), we conclude that Supreme Court properly refused to do so inasmuch as defendants failed to establish a reasonable excuse for their default and a meritorious defense to the action (see Brehm v. Patton, 55 AD3d 1362;  cf.   Wilcox v. U-Haul Co., 256 A.D.2d 973;  see generally CPLR 5015[a][1] ).

Patricia L. Morgan

Clerk of the Court