AP POWER MEDIA INC v. Lev Paukman, M.D., Defendant–Appellant.

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AP X–POWER MEDIA, INC., Plaintiff–Respondent, v. OCEAN BRIDGE, INC., et al., Defendants, Lev Paukman, M.D., Defendant–Appellant.

Decided: April 28, 2011

GONZALEZ, P.J., SWEENY, MOSKOWITZ, ACOSTA, MANZANET–DANIELS, JJ. Samuel A. Ehrenfeld, New York, for appellant. Khenkin & Sauchik, P.C., Brooklyn (Alec Sauchik of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 3, 2010, which denied defendants Ocean Bridge, Inc. and Lev Paukman, M.D.'s motion to vacate a default judgment awarding plaintiff damages, unanimously affirmed, without costs.

In this action alleging breach of contract, the motion to vacate the default judgment was properly denied because no reasonable excuse was offered for defendants' failure to answer the complaint (Benson Park Assoc., LLC v. Herman, 73 AD3d 464, 465 [2010]; Youni Gems Corp. v. Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]; Tandy Computer Leasing v. Video X Home Lib., 124 A.D.2d 530, 531 [1986] ). Defense counsel's generalized assertion of unpreparedness is insufficient proof of law office failure (see Perez v. New York City Hous. Auth ., 47 AD3d 505–506 [2008]; Youni Gems, 70 AD3d at 455).

In addition, defendants failed to offer a meritorious defense to the breach of contract claim (see Peacock v. Kalikow, 239 A.D.2d 188, 190 [1997]; Facsimile Communications Indus., Inc. v. NYU Hosp. Ctr., 28 AD3d 391, 392 [2006] ). The individual defendant's assertion that he never personally signed a contract with plaintiff is insufficient to show a defense to the claims being asserted (see Peacock, 239 A.D.2d at 190), where, as here, the assertion is that the contract was with the company and that there is no substantive difference between the individual and corporate defendants. Defendant's additional statement that the corporate defendant maintains its own bank accounts is equally unavailing as the maintenance of separate bank accounts, alone, is insufficient evidence that defendant did not dominate and control the corporation (see Fantazia Intl. Corp. v. CPL Furs N.Y., Inc., 67 AD3d 511, 512 [2009] ); defendants do not attempt to make any factual allegations as to the remaining alter ego factors or plaintiff's remaining causes of action.

Defendants' remaining contentions are improperly raised on this appeal.