MJAHDI v. MAGUIRE

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

Abderrahmane MJAHDI, respondent, v. Eamon MAGUIRE, et al., appellants, et al., defendants.

Decided: September 26, 2005

ANITA R. FLORIO, J.P., STEPHEN G. CRANE, GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants. Stuart H. Finkelstein, Kew Gardens, N.Y., for respondents.

In an action to recover damages for personal injuries, the defendants Eamon Maguire and Eddie Maguire appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated September 10, 2004, which granted the plaintiff's motion for leave to enter a judgment against them upon their failure to appear or answer.

ORDERED that the order is affirmed, with costs.

In order to avoid the entry of a default judgment upon their failure to appear or answer, the appellants were required to demonstrate a justifiable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a] [1];  Thompson v. Steuben Realty Corp., 18 A.D.3d 864, 795 N.Y.S.2d 470;  Hegarty v. Ballee, 18 A.D.3d 706, 795 N.Y.S.2d 747;  Bergdoll v. Pentecoste, 17 A.D.3d 613, 794 N.Y.S.2d 78;  Pampalone v. Giant Bldg. Maintenance, 17 A.D.3d 556, 793 N.Y.S.2d 462).  “The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor” (MacMarty, Inc. v. Scheller, 201 A.D.2d 706, 707, 608 N.Y.S.2d 294;  see Bergdoll v. Pentecoste, supra at 614, 794 N.Y.S.2d 78).

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to enter a judgment against them upon their failure to appear or answer.   In opposition to the motion, the appellants' attorney claimed that his clients could not “recall exactly” what they did with the complaint served upon them, and that while they believed they might have sent the complaint to his law firm, his firm never received it.   These allegations do not constitute a reasonable excuse for the appellants' default in appearing or serving a timely answer (see Pampalone v. Giant Bldg. Maintenance, supra at 557, 793 N.Y.S.2d 462;  Abrams v. City of New York, 13 A.D.3d 566, 786 N.Y.S.2d 323).   In view of the lack of a reasonable excuse, it is unnecessary to consider whether the appellants sufficiently demonstrated the existence of a meritorious defense (see Krieger v. Cohan, 18 A.D.3d 823, 796 N.Y.S.2d 633).

The appellants' remaining contentions are without merit.

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