O'Leary v. Noutsis

Mar 24, 2003
Versions:303 A.D.2d 664
756 N.Y.S.2d 793

*665—In an action, inter alia, to recover damages for assault, the defendant Brendan Wright appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated March 22, 2002, as granted that branch of the plaintiffs cross motion which was for leave to enter a judgment against him on the issue of liability upon his default in answering, and declined to compel the plaintiff to accept his late answer.

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

A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Gray v B.R. Trucking Co., 59 NY2d 649, 650 [1983]; Cilindrello v Rayabin, 297 AD2d 699 [2002]; cf. Fidelity & Deposit Co. of Md. v Arthur Andersen & Co., 60 NY2d 693, 695 [1983]). The appellant failed to demonstrate either a reasonable excuse for his default or a meritorious defense (see State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31, 35 [1997]; Moore v Claudio, 224 AD2d 502, 503 [1996]; Passalacqua v Banat, 103 AD2d 769 [1984]). Thus, the Supreme Court providently exercised its discretion in denying the relief requested by the appellant. Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.