Schiller v. Sun Rock Building Corp.

Apr 19, 1999
Versions:260 A.D.2d 566
688 N.Y.S.2d 646
1999 N.Y. App. Div. LEXIS 4116

—In an action to recover damages for personal injuries, etc., the defendant Sun Rock Building Corp. appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated July 14, 1998, which denied its motion to vacate a judgment entered against it in the principal sum of $13,500 upon its default in appearing in the action.

Ordered that the order is affirmed, with costs.

The defendant Sun Rock Building Corp. moved pursuant to CPLR 5015 (a) to vacate a judgment entered against it upon its default in appearing. To obtain this relief a party must establish a reasonable excuse for the default and a meritorious defense. The court treated the motion as one made pursuant to CPLR 317, which requires proof of lack of actual notice and proof of a meritorious defense. The appellant failed to demonstrate lack of actual notice, a reasonable excuse for its default, or a meritorious defense. Thus, its motion, regardless of whether it was deemed one pursuant to CPLR 5015 or 317, was properly denied (see, Eugene DiLorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138; Plotkin v Avon Dev. Enters. Corp., 245 AD2d 109; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238; Harbert Offset Corp. v Bowery Sav. Bank, 174 AD2d 650). Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.