State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522350 

 522358

____________________________________

In the Matter of VILLAGE

GREEN HOLLOW, LLC,

AppellantRespondent,

v

ASSESSOR OF THE TOWN OF 

MAMAKATING et al.,

RespondentsAppellants.

(And Five Other Related Proceedings.)

(Proceeding No. 1.)

_____________________________________ MEMORANDUM AND ORDER

In the Matter of BLUE SKY HOMES,

LLC,

AppellantRespondent,

v

ASSESSOR OF THE TOWN OF 

MAMAKATING et al.,

RespondentsAppellants.

(And Five Other Related Proceedings.)

(Proceeding No. 2.)

_____________________________________

Calendar Date: October 17, 2016

Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.
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__________

Kalter, Kaplan Zeiger & Forman, Woodbourne (Terry S. Forman

of counsel), for appellant-respondent.

Stoloff & Silver, LLP, Monticello (Richard A. Stoloff of

counsel), for respondents-appellants.

__________

Egan Jr., J.P.

Cross appeals from an order of the Supreme Court (Schick,

J.), entered September 28, 2015 in Sullivan County, which, in two

proceedings pursuant to RPTL article 7, among other things,

denied petitioners' motions for leave to renew and reargue.

Petitioners, who individually own various mobile home parks

located in the Town of Mamakating, Sullivan County, separately

commenced these tax certiorari proceedings seeking a reduction in

the assessed value of their respective properties for tax years

2008 to 2013. Protracted discovery and settlement negotiations

followed, but no successful resolution was reached. Between May

2012 and April 2014, petitioners filed notes of issue and

certificates of readiness for trial relative to the proceedings

encompassing tax years 2008 to 2011, and a trial date was

scheduled for August 20, 2014.

In June 2014, respondents moved to, among other things,

strike the notes of issue based upon petitioners' failure to

comply with 22 NYCRR 202.59 and to dismiss each of these

proceedings due to petitioners' noncompliance with respondents'

respective discovery demands. Although counsel for petitioners

appeared at the oral argument on the motions, petitioners failed

to file any written submissions in opposition thereto. By order

entered December 30, 2014, Supreme Court granted the requested

relief, striking the notes of issue and dismissing the subject

proceedings. Thereafter, in February 2015, petitioners sought
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leave to renew/reargue and, in the alternative, moved to be

relieved from their default in responding to the motions to

strike/dismiss. Respondents opposed the motions. By order

entered September 28, 2015, Supreme Court denied petitioners'

applications for leave to renew/reargue and granted petitioners'

motions to relieve them from their default in failing to file

written submissions in opposition to respondents' motions, but

otherwise adhered to its prior decision. In other words, Supreme

Court essentially reopened the default but denied petitioners'

applications upon the merits. Petitioners now appeal from so

much of Supreme Court's order as denied their motions for leave

to renew/reargue and denied their motions to vacate the default,1

and respondents cross-appeal from so much of Supreme Court's

order as granted petitioners' motions to reopen their default.2

We affirm – albeit for reasons other than those expressed

by Supreme Court. Preliminarily, petitioners do not dispute –

and a review of the applicable case law makes clear – that

counsel's oral opposition to respondents' respective motions

"does not constitute competent evidence" with respect thereto

(M & C Bros., Inc. v Torum, 75 AD3d 869, 870 [2010]) and,

therefore, Supreme Court properly treated petitioners' "failure

to formally oppose the motion[s] as a default" (Matter of County

of Albany [Bowles], 91 AD3d 1132, 1133 [2012]; see CPLR 2214 [c];

Johnson v State of New York, 140 AD3d 1561, 1561 [2016]; M & C

1 The proceedings initiated by each petitioner have been

consolidated for purposes of these appeals.

2 Insofar as Supreme Court left intact its December 2014

order granting respondents the full relief requested, i.e., the

striking of the notes of issue and the dismissal of the relevant

petitions, respondents are not aggrieved by Supreme Court's

September 2015 order (see CPLR 5511); hence, respondents' cross

appeals must be dismissed (see Maldonado v DiBre, 140 AD3d 1501,

1503 n 3 [2016], lv denied ___ NY3d ___ [Nov. 21, 2016]). The

arguments raised by respondents, however, nonetheless may be

considered as alternative grounds for affirmance (see

Ullmannglass v Oneida, Ltd., 121 AD3d 1371, 1372 n 2 [2014]).
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Bros., Inc. v Torum, 75 AD3d at 870). Having failed to contest

respondents' motions, it necessarily follows that petitioners

could not seek to renew and/or reargue factual or legal claims

that they neglected to assert in the first instance. That selfevident proposition aside, it is well settled that where, as

here, an order is entered upon a party's default, that "party's

sole remedy is . . . to move to vacate the default order and, if

necessary, to appeal from the denial of that motion" (Johnson v

State of New York, 140 AD3d 1558, 1558 [2016], citing CPLR 5015

[a] [1]; Matter of Susan UU. v Scott VV., 119 AD3d 1117, 1118

[2014]; Matter of Jay v Fischer, 102 AD3d 1021, 1021 [2013];

DeLuke v Albany Rest. Supply, Inc., 42 AD3d 601, 601 [2007]).

To that end, it is well settled that "[a] party seeking to

vacate a default judgment must demonstrate a reasonable excuse

for the default and the existence of a meritorious defense"

(Wadsworth v Sweet, 106 AD3d 1433, 1434 [2013] [internal

quotation marks and citation omitted]; see Deutsche Bank Natl.

Trust Co. v Beckman, 140 AD3d 1456, 1457 [2016]; Rutnik & Corr

CPA's, P.C. v Guptill Farms, Inc., 127 AD3d 1531, 1531 [2015]). 

Although the determination of whether to vacate a default

judgment indeed lies within the sound discretion of the trial

court (see Baptist Health Nursing & Rehabilitation Ctr., Inc. v

Baxter, 140 AD3d 1386, 1387 [2016]), in the absence of a

reasonable excuse for the default, the moving party's proffer of

a meritorious defense need not be considered (see Rutnik & Corr

CPA's, P.C. v Guptill Farms, Inc., 127 AD3d at 1532).

Here, petitioners failed to articulate a reasonable excuse

for their default in the first instance – instead contending only

that they may have proceeded in a somewhat "lackadaisical mode"

and have been lulled into "a false sense of security" because of

the manner in which these proceedings had "dragged on over the

years" and "the expectation that [Supreme] Court would grant one

further adjournment" in order to allow them to comply with the

outstanding discovery demands. In the absence of a reasonable

excuse, Supreme Court abused its discretion in reopening

petitioners' default and – in effect – proceeding to consider

whether petitioners had proffered a meritorious defense. Stated

another way, inasmuch as petitioners did not meet the standard
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for vacating their prior default, Supreme Court should have

denied the requested relief upon that ground alone. That said,

because we agree that respondents' motions to strike the notes of

issue and dismiss the underlying proceedings were properly

granted, Supreme Court's order is affirmed.

Rose, Clark, Mulvey and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ORDERED that the cross appeals are dismissed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court