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

Nakia NEELY, Plaintiff–Respondent, v. Scott A. FELICETTI, et al., Defendants–Appellants.


Decided: November 14, 2019

Gische, J.P., Webber, Kern, Moulton, JJ. Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellants. Jones, Wolf & Kapasi, LLC, New York (Benjamin J. Wolf of counsel), and Jaffe & Velazquez, LLP, New York (R. Diego Velazquez of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about January 24, 2019, which, in this action alleging, inter alia, legal malpractice, denied defendants' motion to vacate the default judgment entered against them, unanimously affirmed, with costs.

Defendants' motion to vacate the default judgment entered against them was properly denied. Defendants' explanation that their October 20, 2017 email forwarding plaintiff's summons and complaint to their counsel was not received may explain their failure to timely answer (see Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 464, 36 N.Y.S.3d 464 [1st Dept. 2016]). However, defendants failed to explain their continued failure to answer the complaint, or why they did not submit opposition to plaintiff's motion for a default judgment despite their acknowledgment that they received it. Nor did they seek vacatur of the default judgment until more than nine months after it was entered (see Hertz Vehs. LLC v. Westchester Radiology & Imaging, PC, 161 A.D.3d 550, 77 N.Y.S.3d 393 [1st Dept. 2018]). Defendants' claim that the parties were engaged in settlement negotiations is not a reasonable excuse for their default (see Flora Co. v. Ingilis, 233 A.D.2d 418, 419, 650 N.Y.S.2d 24 [2d Dept. 1996]).

In view of the foregoing, this Court need not consider whether defendants demonstrated a potentially meritorious defense to the action (see Colony Ins. Co. v. Danica Group, LLC, 115 A.D.3d 453, 454, 984 N.Y.S.2d 2 [1st Dept. 2014]).