Roussodimou v. Zafiriadis
| Decision Date | 28 April 1997 |
| Citation | 657 N.Y.S.2d 66,238 A.D.2d 568 |
| Parties | Artemis ROUSSODIMOU, Appellant, v. Demetrios ZAFIRIADIS, D.D.S., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bracken & Margolin, Islandia (Olympia Gouvis, of counsel), for appellant.
Patrick F. Adams, P.C., Bay Shore (Charles J. Adams and Daniel C. Burke, of counsel), for respondent.
Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated April 25, 1996, which granted the defendant's motion pursuant toCPLR 5015 to vacate a default judgment entered against him.
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the defendant's motion to vacate the default judgment entered against him is denied.
The plaintiff commenced the instant dental malpractice action against the defendant in or about July 1993, alleging, inter alia, that the defendant had fitted her "with an improperly constructed bridge". The defendant, who was personally served with a copy of the summons and complaint, made arrangements with one of his patients, an attorney, to defend him in the instant action.
No answer was served on behalf of the defendant, and the plaintiff moved for leave to enter a default judgment. The plaintiff served this motion upon the defendant who forwarded it to his attorney. Although the return date of the motion was adjourned several times at this attorney's request, no opposition papers were filed on behalf of the defendant. Thus, in April 1995, the plaintiff's motion for leave to enter a default judgment was granted, and the matter was set down for a hearing on damages. The defendant failed to appear at the hearing on damages, and on August 14, 1995, a judgment in the amount of $76,648.55 was entered against him. In December 1995, the plaintiff served a restraining notice upon the defendant's bank, freezing his account.
In March 1996 the defendant moved to vacate the default judgment entered against him. According to the defendant, he first realized that a default judgment had been entered against him on December 27, 1995 when his bank notified him that his account had been frozen. He also stated that any problem with the plaintiff's bridges was due to her failure to return to him for a final fitting on the bridges. Over the plaintiff's opposition, the defendant's motion was granted, and the plaintiff now appeals. We reverse.
A party attempting to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense (see, Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 140, 501 N.Y.S.2d 8, 492 N.E.2d 116). While the determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the trial court (see,Bardales v. Blades, 191 A.D.2d 667, 668, 595 N.Y.S.2d 553), reversal is warranted where the court improvidently exercises its discretion (see,Orlando v. Corning, Inc., 213 A.D.2d 464, 623 N.Y.S.2d 635). The court has discretion to accept law-office failure as a reasonable excuse (see, CPLR 2005; Putney v. Pearlman, s...
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