American Shoring, Inc. v. D.C.A. Construction, Ltd.
| Citation | 789 N.Y.S.2d 722,2005 NY Slip Op 01151,15 A.D.3d 431 |
| Decision Date | 14 February 2005 |
| Docket Number | 2004-04778. |
| Parties | AMERICAN SHORING, INC., Respondent, v. D.C.A. CONSTRUCTION, LTD., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
To vacate its default in appearing or answering the amended verified complaint, the defendant was required to demonstrate a reasonable excuse for its default and a meritorious defense (see CPLR 5015 [a] [1]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]; Spells v A&P Supermarkets, 253 AD2d 422 [1998]). The defendant's counsel failed to establish that the delay in appearing or answering was entirely attributable to a car accident involving an attorney from the law firm (see Price v Salvo, 203 AD2d 349 [1994]; Hargett v Health & Hosps. Corp. of City of N.Y., 88 AD2d 633 [1982]). Moreover, the defendant's counsel did not explain why other attorneys at the firm who were capable of handling this matter did not assume responsibility for it (see Price v Salvo, supra). Furthermore, any reliance by the defendant on the parties' settlement negotiations between October 2003 and January 2004 did not constitute a reasonable excuse for the default, since the defendant was aware during those negotiations that the plaintiff had already obtained a default judgment (cf. Scarlett v McCarthy, 2 AD3d 623 [2003]; Lehrman v Lake Katonah Club, 295 AD2d 322 [2002]).
In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated a meritorious defense.
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