Jing Liu v. Yang

Jing Liu v Yang (2020 NY Slip Op 50955(U)) [*1] Jing Liu v Yang 2020 NY Slip Op 50955(U) [68 Misc 3d 130(A)] Decided on August 21, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on August 21, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2018-1511 Q C Jing Liu, Respondent, against Fiona Ruihua Yang, Also Known as Ruihua Yang, Paris Wedding Center Corp., Laffection Wedding Center, LLC, Paris Wedding Center Group Corp., John Doe, Also Known as Wei, and Jane Doe, Also Known as Lily, Appellants. Law Office of Xian Feng Zou (William X. Zou of counsel), for appellants. Daniel Chu, Esq., for respondent. Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered March 26, 2018. The order, insofar as appealed from as limited by the brief, denied the branch of defendants' motion seeking to vacate an order of that court entered September 14, 2017 granting, upon defendants' default, plaintiff's motion to strike defendants' answer. ORDERED that the order, insofar as appealed from, is affirmed, without costs. In this action to recover damages for, among other things, breach of contract, the parties entered into a so-ordered stipulation setting forth their discovery agreement. When defendants failed to comply with the stipulation, plaintiff moved to strike defendants' answer. Defendants failed to timely oppose the motion and thereafter unsuccessfully attempted to obtain the court's consent to consider their untimely opposition papers on the return date or obtain an extension of time to submit papers. By order entered September 14, 2017, the Civil Court (David M. Hawkins, J.) granted plaintiff's motion on default. Thereafter, defendants moved to vacate the September 14, 2017 order or for leave to reargue plaintiff's motion, claiming that defense counsel had assumed that his request for an extension of time to submit papers in opposition to plaintiff's motion would be granted. Plaintiff opposed defendants' motion, arguing that defendants had not provided a reasonable excuse [*2]for their failure to submit timely opposition. By order entered March 26, 2018, the court (David M. Hawkins, J.) denied defendants' motion. As limited by their brief, defendants appeal from so much of the March 26, 2018 order as denied the branch of their motion seeking to vacate the September 14, 2017 order. To vacate their default in opposing plaintiff's motion to strike their answer, defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Taylor Appraisals v Prokop, 99 AD3d 985 [2012]; Walker v Mohammed, 90 AD3d 1034 [2011]; Roche v City of New York, 88 AD3d 978 [2011]; Casali v Cyran, 84 AD3d 711 [2011]). "While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse" (Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991, 992 [2011]; see Taylor Appraisals v Prokop, 99 AD3d 985; Morrison v Rosenberg, 278 AD2d 392 [2000]). Here, defendants' proffered excuse of law office failure was vague and unsubstantiated. Counsel merely argued that it was the first time the motion was on the calendar and he assumed he would be granted an adjournment to submit opposition papers. This did not constitute a reasonable excuse for defendants' default in opposing plaintiff's motion (see Taylor Appraisals v Prokop, 99 AD3d 985; Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 992; Alberton Devs., Inc. v All Trade Enters., Inc., 74 AD3d 1000 [2010]). In any event, defendants failed to rebut plaintiff's showing that their conduct in failing to comply with discovery requests, even after being directed to do so by court order, was willful and contumacious (see Airtight Sec. Sys., Inc. v 2350, LLC, 117 AD3d 764 [2014]; Taylor Appraisals v Prokop, 99 AD3d 985; Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]; Renelique v Lancer Ins. Co., 53 Misc 3d 145[A], 2016 NY Slip Op 51596[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Accordingly, the order, insofar as appealed from, is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 21, 2020