Freulich-Woodruff v. B.A. Auto Repair, Inc.

Jan 24, 2005
Versions:14 A.D.3d 593
787 N.Y.S.2d 886
2005 N.Y. App. Div. LEXIS 524

In an action, inter alia, to set aside a fraudulent conveyance, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated January 30, 2004, as denied her motion for leave to enter judgment upon the defendants’ default in answering, and, upon the denial of the cross motion of the defendant Z & B Auto Repair, Inc., for summary judgment dismissing the complaint insofar as asserted against it, granted the defendants 30 days to interpose an answer.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

The plaintiff is entitled to enter judgment against the defendant B.A. Auto Repair, Inc., which failed to answer the complaint and submitted no opposition to the motion for leave to enter a default judgment. The plaintiff is also entitled to enter judgment against the defendant Z & B Auto Repair, Inc. (hereinafter Z & B Auto). To successfully oppose the plaintiff‘s motion for leave to enter judgment based upon its failure to interpose an answer, Z & B Auto was required to demonstrate a reasonable excuse for its default, and a meritorious defense (see Dinstber v Fludd, 2 AD3d 670, 671 [2003]; Siu Lung Cheng v Leader Jewelry Corp., 246 AD2d 526 [1998]; Albano v Nus Holding Corp., 233 AD2d 280, 281 [1996]). Z & B Auto failed to present a reasonable excuse for its default.

Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.