Maida v. Lessing's Rest. Serv., Inc.

• Decision Date: 25 January 2011
• Citation: 80 A.D.3d 732,915 N.Y.S.2d 316
• Parties: Frances MAIDA, respondent, v. LESSING'S RESTAURANT SERVICES, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 316

80 A.D.3d 732

Frances MAIDA, respondent,

v.LESSING'S RESTAURANT SERVICES, INC., et al., appellants.

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

Jan. 25, 2011.

Egan & Golden, LLP, Patchogue, N.Y. (Brian T. Egan, Eugene L. Wishod, and Michael P. Geppetti of counsel), for appellant Lessing's Restaurant Services, Inc.

Laurence A. Silverman, Huntington, N.Y., for respondent.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RANDALL T. ENG, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Mayer, J.), dated May 21, 2010, which denied the motion of the defendant Lessing's Restaurant Services, Inc., to vacate a prior order of the same court dated November 24, 2008, granting the plaintiff's unopposed motion for leave to enter a judgment against that defendant upon its failure to appear or answer the complaint.

ORDERED that the appeal by the defendant Lessing's, Inc., is dismissed; and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Lessing's Restaurant Services, Inc.

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its 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). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint ( see Gartner v. Unified Windows, Doors & Siding, Inc., 71 A.D.3d 631, 632, 896 N.Y.S.2d 415; Kramer v. Oil Servs., Inc., 65 A.D.3d 523, 524, 882 N.Y.S.2d 906; Leifer v. Pilgreen Corp., 62 A.D.3d 759, 760, 878 N.Y.S.2d 451; Martinez v. D'Alessandro Custom Bldrs. & Demolition, Inc., 52 A.D.3d 786, 787, 861 N.Y.S.2d 737; Segovia v. Delcon Constr. Corp., 43 A.D.3d 1143, 1144, 842 N.Y.S.2d 536). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action ( see Abdul v. Hirschfield, 71 A.D.3d at 709, 898 N.Y.S.2d 44; Segovia v. Delcon Constr. Corp., 43 A.D.3d at 1144, 842 N.Y.S.2d 536; American Shoring, Inc. v. D.C.A. Constr., Ltd., 15 A.D.3d 431, 789 N.Y.S.2d 722). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's...