Jagiela v. 1329 Realty, LLC

Apr 18, 2005
Versions:17 A.D.3d 533
792 N.Y.S.2d 873
2005 N.Y. App. Div. LEXIS 4145

In an action to recover damages for personal injuries, the defendant 1329 Realty, LLC, appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated May 15, 2004, which denied its motion, inter alia, pursuant to CPLR 317 and 5015 to vacate an order of the same court dated December 12, 2003, directing a note of issue to be filed and an inquest on damages, entered upon its default in answering or appearing.

Ordered that the order is affirmed, with costs.

The appellant moved, inter alia, pursuant to CPLR 317 and 5015 to vacate an order entered upon its default in answering or appearing. However, in support of that branch of its motion which was pursuant to CPLR 317, the appellant failed to meet its burden of demonstrating that it lacked actual notice of the action in time to defend (see Persaud v Gallante Props., Inc., 11 AD3d 442 [2004]; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000]). In support of that branch of its motion which was pursuant to CPLR 5015, it failed to demonstrate a reasonable excuse for its default (see Westchester Med. Ctr. v Clarendon Ins. Co., 304 AD2d 753 [2003]). Thus, those branches of the motion were properly denied.

The appellant‘s remaining contentions are without merit.

Cozier, J.P., Ritter, Spolzino and Skelos, JJ., concur.