Bray v. Luca

Nov 4, 1996
Versions:233 A.D.2d 284
649 N.Y.S.2d 801
1996 N.Y. App. Div. LEXIS 11642

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Feinberg, J.), dated January 19, 1996, which granted the defendants’ motion to vacate a judgment of the same court dated August 16, 1995, entered upon their default in answering the complaint, to the extent of vacating the judgment insofar as it was entered against Giuseppe Luca, and (2) an amended order of the same court dated *285February 8, 1996, which vacated the judgment as against all the defendants.

Ordered that the appeal from the order dated January 19, 1996, is dismissed, as that order was superseded by the amended order dated February 8, 1996; and it is further,

Ordered that the amended order is reversed, on the law and as a matter of discretion, the order dated January 19, 1996, is vacated, the motion is denied, and the judgment dated August 16, 1995, is reinstated; and it is further,

Ordered that the appellant is awarded one bill of costs.

The Supreme Court improvidently exercised its discretion in granting the defendants’ motion to vacate the default judgment against them. The defendants failed to proffer a reasonable excuse for their complete failure to respond to the summons with notice, to any of the plaintiff’s subsequent letters, or to other notices served upon them during the 28 months before the default judgment was entered (see, CPLR 3012 [d]; 5015 [a] [1]; Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693, 695; see also, Martyn v Jones, 166 AD2d 508). Moreover, the affidavit submitted by one of the defendants was inadequate to demonstrate a meritorious defense since the allegations in the affidavit relating to the issue of a meritorious defense were not based upon his personal knowledge (see, Cooper v Badruddin, 192 AD2d 997; cf., Centrillo v Route 6 & 22 Realty, 207 AD2d 371). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.