Caputo v. Peton

Dec 20, 2004
Versions:13 A.D.3d 474
785 N.Y.S.2d 92
2004 N.Y. App. Div. LEXIS 15598
787 N.Y.S.2d 92

In an action to recover damages for personal injuries, the defendant Angelo J. Sciannameo appeals from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated June 27, 2003, as denied those branches of his motion which were to vacate his default in answering and to compel the plaintiff to accept his answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

To vacate his default, the defendant Angelo J. Sciannameo was required to demonstrate both a reasonable excuse for his default and a meritorious defense (see CPLR 5015 [a] [1]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]; Spells v A&P Supermarkets, 253 AD2d 422 [1998]). It is within the discretion of the Supreme Court, in the interest of justice, to excuse default resulting from law office failure (see CPLR 2005). However, under the circumstances of this case, Sciannameo’s excuse of law office failure was not reasonable (see Kyriacopoulos v Mendon Leasing Corp., 216 AD2d 532, 533 [1995]; see also Weitzenberg v Nassau County Dept. of Recreation & Parks, 282 AD2d 741, 741-742 [2001]). Moreover, Sciannameo failed to offer any excuse for neglecting to oppose the plaintiffs motion for leave to enter judgment based upon the default (see Kyriacopoulos v Mendon Leasing Corp., supra). Under the circumstances, the Supreme Court providently exercised its discretion in declining to vacate Sciannameo’s default. Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.