M & C Bros. v. Torum , 956 N.Y.2d 277 ( 2012 )

Mercure, J.P.

Defendants and Neroni argue that Supreme Court abused its discretion in denying defendants’ most recent request to vacate because, they maintain, plaintiffs submissions in support of its motion to strike defendants’ answer and for a default judgment were insufficient, rendering the judgment a nullity. “CPLR 3215 (f) requires that an applicant for a default judgment file ‘proof by affidavit made by the party of the facts constituting the claim!,]’ [or a] verified complaint . . . [that] has been properly served” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). Here, plaintiff relied upon its verified complaint in its application for a default judgment. Although defendants and Neroni contend that the copy of the complaint provided with the motion was missing several pages — including the verification pag — the court had a copy of the entire verified complaint before it, and relied upon that copy and an attached exhibit in granting the default judgment. Under the circumstances, plaintiff’s submissions were sufficient to meet the statutory requirements for an application for default (see id. at 71; cf. State of New York v Williams, 44 AD3d 1149, 1151-1152 [2007]; Hann v Morrison, 247 AD2d 706, 708 [1998]). Moreover, in light of defendants’ pattern of noncompliance, failure to offer a reasonable excuse for either their default or the violation of the underlying conditional preclusion order, multiple motions to vacate the default, and the lack of any substantive response to plaintiffs request for sanctions, Supreme Court did not abuse its discretion in denying the request to vacate and imposing sanctions upon Neroni (see Hesse Constr., LLC v Fisher, 61 AD3d 1143,1144 [2009]; Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1175-1176 [2008]; Household Bank Region I v Stickles, 276 AD2d 940, 941-942 [2000]; cf. Gerdes v Canales, 74 AD3d 1017, 1018 [2010]; Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [2008]).

The remaining arguments of defendants and Neroni are either lacking in merit or concern factual matters that are outside the record.

Spain, Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, with costs.