COUN. FIN. SERVS. v. DAVID McQUADE LEIB

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendants appeal from an order denying their motion seeking to vacate a default order and judgment entered against them following their failure to oppose plaintiffs motion for summary judgment in lieu of complaint pursuant to CPLR 3213. On a prior appeal, we affirmed the default order and judgment that granted plaintiffs motion and ordered defendants to pay a specified amount due on a promissory note executed by defendant David McQuade Leibowitz, EC. and personally guaranteed by defendant David McQuade Leibowitz ( Counsel Fin. Serus., LLC v David McQuade Leibowitz, P.C., 67 AD3d 1483). Even assuming, arguendo, that the default order and judgment may be vacated pursuant to CPLR 5015 (a) (1) despite defendants' prior appeal ( see Pergamon Press v Tietze, 81 AD2d 831, lv dismissed 54 NY2d 605; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6), we conclude that Supreme Court properly refused to do so inasmuch as defendants failed to establish a reasonable excuse for their default and a meritorious defense to the action ( see Brehm v Patton, 55 AD3d 1362; cf. Wilcox v U-Haul Co., 256 AD2d 973; see generally CPLR 5015 [a] [1]).