Assael v. 15 Broad St. Llc

• Decision Date: 16 March 2010
• Citation: 71 A.D.3d 802,896 N.Y.S.2d 459,2010 N.Y. Slip Op. 02077
• Parties: Ivan ASSAEL, appellant,v.15 BROAD STREET, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 802
896 N.Y.S.2d 459
2010 N.Y. Slip Op. 02077

Ivan ASSAEL, appellant,
v.
15 BROAD STREET, LLC, respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 16, 2010.

[896 N.Y.S.2d 459]

Stuart R. Lang, New York, N.Y., for appellant.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[71 A.D.3d 802] In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Miller, J.), dated December 4, 2008, which granted the defendant's motion pursuant to CPLR 5015(a)(1) to vacate a judgment dated May 19, 2008, entered upon an order dated February 4, 2008, granting the plaintiff's unopposed motion for leave to enter judgment on the issue of liability upon the defendant's default in appearing or answering, and after an inquest on the issue of damages, in favor of the plaintiff and against the defendant in the principal sum of $175,000, and (2), as limited by his brief, from so much of an order of the same court dated December 22, 2008, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated December 4, 2008, is dismissed, as that order was superseded by the order dated December 22, 2008, made upon reargument; and it is further,

ORDERED that the order dated December 22, 2008, is reversed insofar as

[896 N.Y.S.2d 460]

appealed from, on the law, on the facts, and in the exercise of discretion, upon reargument, the order dated December 4, 2008, is vacated, and the defendant's motion to vacate the judgment is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

[71 A.D.3d 803] A defendant seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action ( see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; Segovia v. Delcon Constr. Corp., 43 A.D.3d 1143, 1144, 842 N.Y.S.2d 536; Canty v. Gregory, 37 A.D.3d 508, 829 N.Y.S.2d 694). The defendant failed to proffer any excuse for its default in appearing or answering the complaint. Furthermore, the defendant's explanations for failing to oppose the plaintiff's motion for leave to enter a default judgment were not reasonable ( see Leifer v. Pilgreen Corp., 62 A.D.3d 759, 760, 878 N.Y.S.2d 451; Toland v. Young, 60 A.D.3d 754, 755, ...