Luisa v. Zakir

Luisa v Zakir (2021 NY Slip Op 50768(U)) [*1] Luisa v Zakir 2021 NY Slip Op 50768(U) [72 Misc 3d 138(A)] Decided on July 30, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2019-1547 Q C Carmen Chi Luisa, Respondent, against Ahmed Zakir, Appellant. Ahmed Zakir, appellant pro se. Carmen Chi Luisa, respondent pro se (no brief filed). Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), dated August 14, 2019. The order denied defendant's motion to vacate a judgment of that court entered November 18, 2004 upon defendant's failure to appear or answer the claim. ORDERED that the order is affirmed, without costs. Plaintiff commenced this small claims action to recover the principal sum of $5,000. Upon defendant's failure to appear at the trial, a default judgment was entered against him on November 18, 2004 in the principal sum of $2,600. On July 29, 2019, defendant moved to vacate the default judgment. The Civil Court denied defendant's motion, finding that he had not established a reasonable excuse for failing to appear and had not set forth any meritorious defense. To prevail on his motion to vacate the judgment based on excusable default, defendant was required to demonstrate that there was a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby's Bus Co., Inc., 85 AD3d 843 [2011]). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such a determination (see Green Apple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]). Here, we find no basis to disturb the Civil Court's determination that defendant failed to demonstrate a reasonable excuse for his default in appearing (see CPLR 5015 [a] [1]; Holland v Pete B. Serv., Inc., 69 Misc 3d 146[A], 2020 NY Slip Op 51421[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Lane v Smith, 84 AD3d 746 [2011]). We note that this court does not consider evidence which is dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Accordingly, the order is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 30, 2021