Lynn & Cahill, LLP v Witkin, 2012 NY Slip Op 08658 [101 AD3d 515]

December 13, 2012

Appellate Division, First Department

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Law Firm of Kenneth S. Sternberg, New York (Kenneth S. Sternberg of counsel), for appellant.

Lynn & Cahill, LLP, New York (John R. Cahill of counsel), for respondent.

Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered June 4, 2012, awarding plaintiff the principal amount of $57,121.90 on its claim for an account stated, pursuant to an order, same court and Justice, entered January 6, 2012, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for a default judgment with respect to its claim for an account stated, and denied defendant’s cross motion for an extension of time to file an answer, unanimously affirmed, with costs. Appeals from aforesaid order and from order, same court and Justice, entered April 2, 2012, which, upon renewal and reargument, adhered to its original determination, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

In response to plaintiff’s motion for a default judgment, defendant failed to provide a reasonable excuse for failing to file an answer ( see e.g. Toure v Harrison , 6 AD3d 270 , 271 [1st Dept 2004]). Rather, the record suggests that defendant’s inaction constituted a tactical decision on the part of herself and counsel. Nor did defendant demonstrate a meritorious defense to the action.

We have considered defendant’s remaining contentions and find them unavailing. Concur—Tom, J.P., Sweeny, Moskowitz, Renwick and Clark, JJ..