Holt Construction Corp. v. J & R Music World, Inc.

May 28, 2002
Versions:294 A.D.2d 540
742 N.Y.S.2d 876
2002 N.Y. App. Div. LEXIS 5563

—In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), entered May 16, 2001, which granted the defendant’s motion to vacate a judgment of the same court, dated March 14, 2001, entered upon an order of the same court, dated March 12, 2001, granting the plaintiff’s unopposed motion to strike the defendant’s answer for failure to proceed with discovery.

Ordered that the order is affirmed, with costs.

It is settled that the decision to relieve a party from its default rests in the sound discretion of the motion court (see Matter of Samaria Ann B., 293 AD2d 532; Misra & Assoc. v 1155 Dekalb Ave. Corp., 273 AD2d 450). To vacate a default judgment, a moving defendant must demonstrate the existence of a reasonable excuse and a meritorious defense (see Nacson v Semmel, 292 AD2d 432; Loria v Plesser, 267 AD2d 213). The defendant made the requisite showings herein. Accordingly, we will not disturb the Supreme Court’s provident exercise of its discretion (see Almonte v LaTortue, 293 AD2d 431; Garrick-Aug Assoc. Store Leasing v Shefa Land Corp., 270 AD2d 68).

The plaintiff’s remaining contentions are without merit. Altman, J.P., S. Miller, McGinity and Schmidt, JJ., concur.