Yi Zhao v. Liu , 25 N.Y.S.3d 606 ( 2016 )

Yi Zhao v Liu (2016 NY Slip Op 01319)

Yi Zhao v Liu

2016 NY Slip Op 01319

Decided on February 24, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 24, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
JOSEPH J. MALTESE
BETSY BARROS, JJ.

2014-03124
(Index No. 68542/12)

[*1]Yi Zhao, respondent,

v

Dina Liu, also known as Liu Dan, et al., defendants, VisionChina Media, Inc., appellant.

Arnold & Porter LLP, New York, NY (Charles G. Berry and Ian Jay of counsel), for appellant.

Dai & Associates, P.C., New York, NY (John O'Connell, Jacob Chen, and Dawei Gongsun of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for aiding and abetting fraud, the defendant VisionChina Media, Inc., appeals from an order of the Supreme Court, Westchester County (Smith, J.), entered February 28, 2014, which denied, as untimely, its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a) and CPLR 327(a).

ORDERED that the order is affirmed, with costs.

This action seeks to recover damages from VisionChina Media, Inc. (hereinafter VisionChina), for aiding and abetting a fraud allegedly committed by the defendant Dina Liu, also known as Liu Dan. On or about August 26, 2013, the plaintiff served VisionChina with the summons and complaint. VisionChina did not serve an answer. Instead, on December 24, 2013, VisionChina moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a) and CPLR 327(a). The Supreme Court denied the motion. VisionChina appeals.

At the time of its motion, VisionChina was in default for failing to answer the complaint within the 30-day period for service of a responsive pleading (see CPLR 320[a]). VisionChina did not seek relief from its default or make any showing of a reasonable excuse for its default. Under such circumstances, the Supreme Court properly declined to excuse VisionChina's default and denied the motion as untimely (see CPLR 3211[e]; Holubar v Holubar, 89 AD3d 802; McGee v Dunn, 75 AD3d 624).

The parties' remaining contentions need not be reached in light of our determination.

DILLON, J.P., COHEN, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court