Rosado v. Economy Elevator Co.

• Decision Date: 24 February 1997
• Citation: 236 A.D.2d 598,654 N.Y.S.2d 656
• Parties: Jose ROSADO, et al., Plaintiffs, v. ECONOMY ELEVATOR CO., Defendant Third-Party Plaintiff-Appellant, et al., Defendant, Maimonides Medical Center, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 656

654 N.Y.S.2d 656

236 A.D.2d 598

Jose ROSADO, et al., Plaintiffs, v.ECONOMY ELEVATOR CO., DefendantThird-Party Plaintiff-Appellant, et al., DefendantMaimonides Medical Center, Third-Party Defendant-Respondent.

Supreme Court of New York, Appellate Division Second Department.

Feb. 24, 1997.

Chalos & Brown, P.C., New York City(Robert J. Brown and George S. Kolbe, of counsel), for third-partyplaintiff-appellant.

Sedgwick, Detert, Moran & Arnold, New York City(Howard R. Cohen and Mark S. Weinstein, of counsel), for third-party defendant-respondent.

In an action, inter alia, to recover damages for personal injuries, etc., the defendant third-partyplaintiffEconomy Elevator Service of New York, Inc., s/h/a Economy Elevator Co., appeals from an order of the Supreme Court, Kings County(Dowd, J.), dated January 8, 1996, which denied its motion to vacate an order entered upon its default, which order granted the third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

It is well established that a party seeking to be relieved of its default must establish both a reasonable excuse for the default and a meritorious cause of action or defense (see, CPLR 5015[a][1];Fennell v. Mason, 204 A.D.2d 599, 612 N.Y.S.2d 416).It is within the discretion of the trial court in the interest of justice to excuse default resulting from law office failure (see, CPLR 2005;Miles v. Blue Label Trucking Inc., 232 A.D.2d 382, 648 N.Y.S.2d 138).The court, under the circumstances of this case, did not improvidently exercise its discretion in rejecting the appellant's excuse of law office failure (see, Correa v. Ahn, 205 A.D.2d 575, 613...