The following papers have been read on this motion:Notice of Motion, Affidavit in Support, Affirmation in Support and Exhibits xAffidavits in Opposition and Exhibits xMemorandum of Law in Opposition xReply Affidavit in Further Support and Reply Affirmation in Support x This matter is before the Court for decision on the motion filed by Plaintiff David Steven (“David or “Plaintiff”) on February 20, 2018 and submitted on May 14, 2018. For the reasons set forth below, the Court denies the motion.BACKGROUNDA. Relief SoughtPlaintiff moves for an Order vacating the default against him.Defendants Saeed Shamsian (“Saeed”) and Masoud Shamsian (“Masoud”) (“the Shamsians”) oppose the motion.B. The Parties’ HistoryThe parties’ history is outlined in detail in the prior decision of the Court dated May 24, 2017 (Ex. 3 to David Aff. in Supp.). That decision addressed the following motions: 1) the prior motion by Plaintiff for summary judgment in lieu of complaint pursuant to CPLR §3213, and 2) the prior cross motion by the Shamsians to disqualify Herrick Feinstein LLP (the “Herrick Firm”) as counsel for Plaintiff. In its May 24, 2017 decision, the Court denied Plaintiff’s motion, granted the Shamsians’ cross motion and directed that the Herrick Firm was disqualified from representing Plaintiff in this action based on a conflict of interest. The Court directed substitute counsel for Plaintiff, counsel for the Shamsians, and counsel for Defendant Edmond Ebrahimi (“Edmond”) to appear before the Court for a Preliminary Conference on June 27, 2017 at 9:30 a.m. Neither Plaintiff nor substitute counsel for Plaintiff appeared at that conference.On July 27, 2017, the Shamsians filed a motion to dismiss this action, which was returnable on August 21, 2017, based on the failure of Plaintiff or his substitute counsel to appear on June 27, 2017 as directed by the Court. As reflected in the transcript of proceedings before the Court on September 5, 2017 (transcript at Ex. 4 to David Aff. in Supp.), that return date was adjourned to September 5, 2017 at the request of counsel for the Shamsians (“Shamsian Counsel”). On September 5, 2017, Shamsian Counsel and Defendant Edmond appeared before the Court, but neither Plaintiff nor substitute counsel for Plaintiff was present. Edmond advised the Court at that time that, although he had not filed a motion, he also sought dismissal of this action for the reasons set forth in the Shamsians’ motion to dismiss. On September 5, 2017, the Court granted the motion to dismiss based on the failure of Plaintiff or substitute counsel for Plaintiff to appear before the Court on June 27, 2017 as directed, Plaintiff’s further failure to appear on August 21, 2017, the original return date of the Shamsians’ motion to dismiss, and Plaintiff’s failure to appear before the Court on September 5, 2017. The Court directed that the dismissals were “without prejudice, subject, of course, to the plaintiff filing the appropriate application to restore the claims to the calendar” (Tr. at p. 5).In support of the motion now before the Court, David affirms that his first failure to appear was occasioned by the Court’s disqualification of the Herrick Firm, and David affirms that it has taken him several months to retain a new attorney because of “political, regulatory, and personal reasons” (David Aff. in Supp. at4). David affirms that he is a Turkish citizen who operates a logistics business out of Istanbul, Turkey. While he is frequently in New York, he lives in Istanbul and makes his living there. He affirms that he does not have extensive contacts in the New York legal community, and had to rely on recommendations from other attorneys. It took “some weeks” (David Aff. in Supp. at5) to locate a suitable replacement for the Herrick Firm and negotiate a retainer agreement.In the interim, David affirms, he and his wife had their first child, leaving David with less time to attend to his business. For a month or two, David was unable to devote the necessary time to providing a new attorney with a retainer deposit so that the new attorney could be formally retained. David affirms that his assets are “denominated in Turkish Lira” (David Aff. in Supp. at7) and that Turkish currency regulations and export regulations can be difficult. He affirms that the transfer of currency out of Turkey is often subject to bureaucratic delays and layers of governmental review and approval. For two months, therefore, David was unable to pay a retainer deposit because of these regulations and bureaucratic issues. Finally, just before the start of the holiday season in the United States, David was able to complete the process and provide a retainer deposit.David submits that he has a meritorious claim. He affirms that this is an action for nonpayment of these promissory notes with a total face value of $600,000. David provides a copy of his affidavit in support of Plaintiff’s prior motion for summary judgment in lieu of complaint in which he affirms that he seeks recovery based on three promissory notes dated February 26, 2013, each in the amount of $200,000, and each made by one of the Defendants. David disputes Defendants’ assertion that Plaintiff has been partially repaid on the promissory notes, and submits that the Court should restore this action to its calendar.In further support of the motion, attorney Thomas J. Luz, a member of KLG Luz & Greenberg LLP, counsel for Plaintiff in this action (“Substitute Counsel”), provides copies of the David affidavit in support of Plaintiff’s prior motion (Ex. 1 to Luz Aff. in Supp.), which is deemed the complaint, and the Masoud affidavit in opposition to Plaintiff’s prior motion (Ex. 2 to Luz Aff. in Supp.), which is deemed the answer.1 Substitute Counsel notes that the Court stated that the dismissal would be subject to an appropriate motion to restore, and Substitute Counsel asks the Court to vacate the default against Plaintiff.In opposition, Masoud submits that the Court should reject David’s affidavit in support dated January 24, 2018 because it was notarized in New York, New York, at a time when David contends that he was outside of New York State, and in fact was overseas. Masoud also affirms that he has known David for many years, and knows that David “barely speaks the English language” (Masoud Aff. in Opp. at3). Thus, Masoud contends, David’s affidavit in support of the instant motion, which includes the words “myriad,” “suitable,” “bureaucratic” and “perceived,” was not in fact written by David, and should have been submitted together with a translator’s affidavit attesting to the fact that it was translated to him prior to its execution.Masoud contends that, if the Court does consider David’s affidavit, the Court should nonetheless deny the motion because David’s explanation for his defaults is without merit. With respect to David’s affirmation that the birth of his son was one of the contributing factors to his failure to appear, Masoud notes that David does not include the birth date of his son, and affirms that this is because David’s son was born on January 5, 2017, one month before Plaintiff filed this action. In support, Masoud provides 1) David’s Facebook post from January 6, 2017, with a picture, announcing the birth of his son (Ex. A to Masoud Aff. in Opp.), and 2) David’s Facebook post from January 14, 2018 with pictures of his son’s first birthday party in Istanbul (Ex. B to Masoud Aff. in Opp.). Thus, Masoud submits, the birth of David’s son “had nothing to do” (Masoud Aff. in Opp. at4) with David’s failure to appear on June 27, 2017 as directed, which was a date six (6) months after David’s son was born, or his failure to appear on the return dates of the Shamsians’ motion to dismiss. Masoud also notes that the birth of David’s son did not prevent David from filing this action.Masoud also asks the Court to reject David’s contention that his defaults were partly attributable to bureaucratic delays that he encountered in trying to convert Turkish Lira into U.S. dollars, contending that this assertion is “nonsense” (Masoud Aff. in Opp. at5). Masoud affirms that Plaintiff, by his own admission, is frequently in New York. Masoud also affirms that Plaintiff has had ongoing business activities in the United States and that, to conduct these activities, Plaintiff maintains and uses U.S. debit cards and a New York bank account. In addition, David has a ten-year American visa, and is attempting to become a permanent resident of the United States. Thus, Masoud submits, David’s Turkish citizenship had no bearing on his ability to comply with the Court’s directives.Masoud also disputes David’s assertion that he has a meritorious claim, and that “Defendants acknowledge their obligation on the notes, but allege that they have been partially paid” (see David Aff. in Supp. at9). Rather, as set forth in Defendants’ opposition to Plaintiff’s prior motion for summary judgment in lieu of complaint, Defendants submit that there is no money due or owing to Plaintiff. Masoud notes that David does not address Masoud’s affidavit in opposition to Plaintiff’s prior motion in which Masoud provided proof that 1) a total of $419,060 in cash payments were made on the Notes; 2) a total of $208,884.80 in goods were shipped to David’s customer as repayment of the notes but never applied as an offset; 3) a total of rent and utilities in the amount of $202,997.10 were paid on David’s behalf while he had full use and occupancy of half of Defendants’ space at a location on West 37th Street in New York City, but was never applied as an offset; and 4) Plaintiff kept tens of thousands of dollars in commissions due to Defendants but never applied that sum as an offset. Masoud submits that David’s conclusory disagreement with the documentary evidence provided by Defendants in opposition to Plaintiff’s prior motion does not establish that he has a meritorious claim.In further opposition to the motion, Shamsian Counsel notes that David, in his affidavit in support, does not deny the fact that he was aware of the Court’s May 24, 2017 decision, and of the multiple court dates on which Plaintiff was required to appear. Notwithstanding this knowledge, and despite the fact that he was given multiple opportunities to appear, retain counsel and oppose the Shamsians’ motion to dismiss, Plaintiff made no attempts to do so, and Plaintiff made no attempt to contact the Court, or Shamsian Counsel, to seek an adjournment. Shamsian Counsel notes, further that David did not submit a factual reply affidavit in response to Masoud’s allegations of payment and offset, as set forth in Masoud’s affidavit in opposition to Plaintiff’s prior motion.Shamsian Counsel affirms that on July 28, 2017, the day after the Shamsians’ motion to dismiss was electronically filed with the court, Alan Kaplan of the Herrick Firm forwarded a copy of the motion to “BK” with the directive “Please forward to your former partner and make sure he deals with this” (see email, Ex. D to Heller Aff. in Opp.). Shamsian Counsel affirms that, prior to the August 21, 2017 return date of the motion, the motion was adjourned to September 5, 2017, and Plaintiff and his former counsel were given notice of this adjournment (see August 15, 2017 correspondence, Ex. E to Heller Aff. in Opp.). On September 5, 2017, the return date of the motion, Defendants appeared, but neither Plaintiff nor counsel for Plaintiff appeared. Shamsian Counsel affirms that at no time prior to the September 5, 2017 return date, or any time thereafter, did Plaintiff or his counsel contact Shamsian Counsel to alert him of any alleged difficulty that Plaintiff was having in engaging new counsel, or to request additional time to retain counsel.In reply, David agrees that his son was born in January 2017, and that he commenced this action in February 2017, but affirms that it is “not precisely true” (David Reply Aff. at4) that if he had time to commence this action, he necessarily had time to pursue this action. David affirms that he hired his prior counsel in the middle of 2016 and worked with them in developing the case. Most of his work on this action was completed by late fall or early winter of 2016. David affirms that his attorneys had difficulty locating the Defendants for service of the motion for summary judgment in lieu of complaint and, therefore, the filing of that motion was delayed. The only task for David at that time was signing the affidavit in support of Plaintiff’s prior motion, which David affirms he completed during a brief visit to New York in February 2017. Other than that, he affirms, his days and nights were occupied with his son.With respect to Turkish currency issues, David disputes the assertion of Masoud that David has a New York bank account and credit cards which could have been used to retain substitute counsel. David affirms that, while he did have a New York bank account and credit cards, there were no available funds/credit in those accounts in the summer of 2017. He affirms that the bank account was overdrawn and the credit line was at its limit, and those accounts have since been closed. The reason for this, he affirms, was his inability to send money from Turkey. David affirms that, because of certain legal actions in which he was involved in Turkey, he was not permitted either to receive foreign currency for exported goods or send money abroad. This situation allegedly persisted from the end of 2016 to approximately November 2017 and, even when the situation improved, normal Turkish currency restrictions delayed his transfers further. Davi suggests that Masoud may be aware of these issues, affirming that Masoud left David two voice mail messages in which Masoud stated that he if did not discontinue this action, Masoud would falsely advise the Turkish authorities that David had committed fraud against him.David also disputes Masoud’s assertion that David’s knowledge of the English language is limited and, therefore, that there are issues regarding whether his affidavit in support of the instant motion was in fact drafted by David. David assures the Court that he fully understood his affidavit in support at the time that he signed it, and affirms that his attorney merely assisted him in expressing legal concepts and arguments more clearly.C. The Parties’ PositionsPlaintiff submits that he has established a reasonable excuse for his failure to appear on June 27, 2017 as directed by the Court, and on subsequent dates before the Court. Plaintiff contends, further, that he has a meritorious claim based on Defendants’ failure to make required payments pursuant to three promissory notes.The Shamsians oppose the motion submitting that Plaintiff has failed to establish a reasonable excuse for his default. The Shamsians submits that Plaintiff’s claims that his failure to appear in court as directed were due to issues including the recent birth of his child and currency issues are not worthy of belief. The Shamsians submit, further, that Plaintiff does not have a meritorious claim, as evidenced by his failure to respond to the Shamsians’ affirmation in opposition to Plaintiff’s prior motion in which they set forth the payments made to Plaintiff in satisfaction of the promissory notes.RULING OF THE COURTA. Relief from Judgment or OrderCPLR §5015(a)(1) permits a court to relieve a party from a judgment or order upon the ground of excusable default, provided that such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry. A party seeking to vacate an order entered upon his default is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a meritorious cause of action or defense. White v. Incorp. Village of Hempstead, 41 A.D.3d 709, 710 (2d Dept. 2007).B. Application of these Principles to the Instant ActionPreliminarily, the Court will consider David’s affidavit in support, notwithstanding any issues regarding its execution. Furthermore, the Court notes that, as per the reply affirmation of Substitute Counsel, David has re-executed his affidavit to address the issues raised by Defendants regarding the propriety of that affidavit.The Court denies Plaintiff’s motion based on the Court’s conclusion that Plaintiff has not provided a reasonable excuse for his failure to appear on June 27, 2017 and subsequent court dates. Initially, Plaintiff’s assertion that his Turkish citizenship and attendant bureaucratic/financial issues affected his ability to obtain funds to retain substitute counsel is unpersuasive. Indeed, the Court notes that Plaintiff, in support of his prior motion for summary judgment, affirmed that he is the owner of Istanbul Cargo International (“ICI”), an importer of textile products in the United States, which is located in Turkey and “ships textile goods to companies and individuals in the United States, specifically, the State of New York (see Ex. 1 to David Aff. in Supp. at
