Alterbaum v. Shubert Org., Inc.
| Decision Date | 18 January 2011 |
| Citation | 80 A.D.3d 635,914 N.Y.S.2d 681 |
| Parties | Irene ALTERBAUM, appellant, v. SHUBERT ORGANIZATION, INC., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
80 A.D.3d 635
Irene ALTERBAUM, appellant,
v.
SHUBERT ORGANIZATION, INC., et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Jan. 18, 2011.
Sonkin & Fifer (Howard Fifer and David M. Samel, New York, N.Y., of counsel), for appellant.
James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 16, 2010, which granted the defendants' motion to vacate an order of the same court dated March 4, 2010, granting her unopposed motion for leave to enter a judgment against the defendants upon their failure to appear or answer the complaint, and to compel her to accept their answer, nunc pro tunc.
ORDERED that the order dated August 16, 2010, is reversed, on the facts and in the exercise of discretion, with costs, and the
To vacate an order entered upon their default in opposing the plaintiff's motion for leave to enter a default judgment, the defendants were required to demonstrate, inter alia, a reasonable excuse for their default in appearing or answering the complaint and a potentially meritorious defense to the action ( see CPLR 5015[a][1]; Abdul v. Hirschfield, 71 A.D.3d 707, 898 N.Y.S.2d 44; Bekker v. Fleischman, 35 A.D.3d 334, 825 N.Y.S.2d 270; Epps v. LaSalle Bus, 271 A.D.2d 400, 705 N.Y.S.2d 388). The defendants failed to proffer any explanation for their failure to oppose either of the plaintiff's two motions for leave to enter judgment upon their default, one in October 2009, and the second in December 2009, both of which were served upon them ( see Epps v. LaSalle Bus, 271 A.D.2d 400, 705 N.Y.S.2d 388). The defendants' claim, which was improperly presented for the first time in a reply affidavit, that their executive assistant did not recall receiving the two motions, did not overcome the presumption of proper mailing created by the affidavits of service ( see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55; Engel v. Lichterman, 62 N.Y.2d 943, 479 N.Y.S.2d 188, 468 N.E.2d 26; Mei Yun Li v. Qing He Xu, 38 A.D.3d 731, 832 N.Y.S.2d 290; Terlizzese v. Robinson's Custom Serv., Inc., 25 A.D.3d 547, 548, 806 N.Y.S.2d 418). Furthermore, the defendants did...
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