Davidoff Hutcher & Citron LLP v. McLendon

Summary

The New York Appellate Division, First Department, affirmed a judgment awarding Davidoff Hutcher & Citron LLP $178,200.10 against Eric C. McLendon and affirmed the denial of McLendon's motion to vacate summary judgment. The court held that McLendon failed to establish a meritorious defense because his attorney's affirmation lacked personal knowledge and supporting evidence, and it dismissed related appeals as subsumed, taken from a nonappealable paper, or otherwise unavailable.

Holdings

1. An order granting summary judgment on default is not appealable where the motion was granted without opposition and the parties treated the order as entered upon default.
2. A motion to vacate under CPLR 5015(a)(1) may be denied when the movant fails to establish a meritorious defense, even assuming the movant demonstrated a reasonable excuse for the default.
3. An attorney affirmation that is not based on personal knowledge and is unsupported by documentary evidence does not constitute competent evidence to establish a meritorious defense.
4. The court properly declined to consider evidence submitted for the first time on reply.

Questions Presented

1. Whether the appeal from the summary judgment order entered on default was permissible.
2. Whether Supreme Court providently exercised its discretion in denying defendant's motion to vacate the summary judgment order under CPLR 5015(a)(1).
3. Whether defendant established a meritorious defense to support vacatur despite asserting a reasonable excuse for failing to oppose summary judgment.
4. Whether evidence submitted for the first time on reply should be considered.

Disposition

affirmed