CONTRACTORS CASUALTY SURETY COMPANY v. Chestnut Hill Real Estate Corp., et al., Appellants.

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

CONTRACTORS CASUALTY & SURETY COMPANY, Respondent, v. 535 BROADHOLLOW REALTY, L.L.C., et al., Defendants, Chestnut Hill Real Estate Corp., et al., Appellants.

Decided: October 30, 2000

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. John M. Stravato, Melville, N.Y., for appellants. Darrin H. Berger, Huntington, N.Y., for respondent.

In an action to recover damages pursuant to an agreement to indemnify, Chestnut Hill Real Estate Corp., Ted Doukas, and Mary Hauptman appeal from a judgment of the Supreme Court, Nassau County (Alpert, J.), dated July 21, 1999, which, after an inquest, is in favor of the plaintiff and against them in the principal sum of $51,570.   The appeal brings up for review an order of the same court dated February 17, 1999, which denied their motion to vacate their default in appearing at a pretrial conference.

ORDERED that the judgment is affirmed, with costs.

In an order dated September 9, 1998, the Supreme Court struck the appellants' answer based on their failure to appear at a pretrial conference and ordered an inquest (see, 22 NYCRR § 202.27[a] ).   The appellants' motion to vacate their default was denied in an order dated February 17, 1999, and, following the inquest, a judgment was entered in the plaintiff's favor.   On appeal, the appellants contend that the court erred in denying the motion to vacate their default.

 Although the judgment was entered upon the appellants' default in appearing at the pretrial conference, appellate review of the issues raised in the order dated February 17, 1999, is not precluded since the defendant may obtain review of “matters which were the subject of contest below” (James v. Powell, 19 N.Y.2d 249, 256, n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741).

 In moving to vacate their default, the appellants were required to establish a reasonable excuse for their failure to appear at the conference and a meritorious defense (see, Puchal v. Puchal, 273 A.D.2d 368, 711 N.Y.S.2d 330;  BBZZ Equities v. Gorman, 267 A.D.2d 266, 700 N.Y.S.2d 719;  Salemo v. Geller, 260 A.D.2d 153, 685 N.Y.S.2d 616).   We agree with the Supreme Court that, even assuming that the appellants' nonappearance at the conference was excusable based on law office failure, their belated attempt in reply papers to establish a meritorious defense was inadequate.   Accordingly, the Supreme Court providently exercised its discretion in denying the appellants' motion (see, Puchal v. Puchal, supra).

MEMORANDUM BY THE COURT.

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