Lopez-Reyes v. Heriveaux , 144 A.D.3d 486 ( 2016 )

Lopez-Reyes v Heriveaux (2016 NY Slip Op 07583)

Lopez-Reyes v Heriveaux

2016 NY Slip Op 07583

Decided on November 15, 2016

Appellate Division, First 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 November 15, 2016
Renwick, J.P., Moskowitz, Kapnick, Kahn, Gesmer, JJ.

101452/13 2181 -5183 2180

[*1]Maria Yolanda Lopez-Reyes, Plaintiff-Respondent,

v

Emile Heriveaux, et al., Defendants, HCACC-Hispanic, et al., Defendants-Appellants.

Robert W. Napoles, Astoria, for appellants.

Van Leer & Greenberg, New York (Evan Van Leer Greenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Kathryn Freed, J.), entered April 2, 2015, in favor of plaintiff and against, inter alia, defendants HCACC-Hispanic and Chinese American Chamber of Commerce, Inc., and Natural Foods Supermarket, Inc. (together defendants), unanimously affirmed. Appeal from order, same court (Louis B. York, J.), entered July 28, 2014, which denied defendants' motion to vacate an order granting plaintiff a default judgment against them, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants failed to demonstrate a reasonable excuse for their nonappearance (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co. , 67 NY2d 138, 141 [1986]). The excuse proffered, that their principal, defendant Emile Heriveaux, acting pro se, had mistakenly believed that he could appear on their behalf, was not supported by an affidavit by a person with personal knowledge and did not address why no appearance was made on their behalf even after the additional notice required by CPLR 3215(g) was served on them (see World on Columbus v L.C.K. Rest. Group , 260 AD2d 323, 324 [1st Dept 1999]; CPLR 321[a]). Defendants also failed to demonstrate a meritorious defense (see Eugene Di Lorenzo, Inc. , 67 NY2d at 141).

The record shows that defendants' counsel was served with notice of the inquest (CPLR 2103[b][2]), and indeed appeared at the inquest on defendants' behalf. The court properly ordered the inquest with respect to defendants (CPLR 3215[d]), and plaintiff's uncontroverted testimony established the amount of her damages.

We have considered defendants' remaining contentions and find them unavailing.

M-5183 - Maria Yolanda Lopez-Reyes v HCACC - Hispanic

and Chinese American Chamber of Commerce,

Inc., et al.

Defendants' motion, on consent

by all parties, to supplement the

record is granted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2016

DEPUTY CLERK