Opinion
No. 2003-230 K C.
Decided February 10, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily Schiffman, J.), entered January 27, 2003, which granted defendant's motion, inter alia, to vacate the default judgment entered against it.
Order unanimously reversed without costs and defendant's motion, inter alia, to vacate the default judgment entered against it denied.
PRESENT: PESCE, PJ., PATTERSON and GOLIA, JJ.
"A party seeking to be relieved of its default must establish both a reasonable excuse for the default and a meritorious defense * * * ( Eretz Funding v. Shalosh Assocs., 266 AD2d 184, 185). In the instant case, defendant failed to serve an answer or otherwise appear. After defendant's time to do so expired, defendant was served with a motion seeking to obtain a default judgment. Defendant did not oppose the motion. Although plaintiffs served defendant with a copy of the order granting the default judgment with notice of entry and with a copy of the proposed judgment, defendant apparently took no action to vacate its default. Defendant finally moved to vacate its default after plaintiffs served a restraining notice upon defendant's bank. Indeed, by failing to promptly seek to vacate its default and waiting until after plaintiffs restrained its bank account, defendant's default constituted an intentional default, which is not excusable ( see Eretz Funding, 266 AD2d at 185; North Fork Bank v. Martin, 257 AD2d 613; Roussodimou v. Zafiriadis, 238 AD2d 568). Defendant did not establish a reasonable excuse for its default inasmuch as defendant's motion papers offered inconsistent versions of the law office failure which allegedly caused defendant's failure to timely serve and file its answer. Moreover, defendant failed to offer any excuse for its failure to oppose plaintiff's motion which sought a default judgment ( O'Shea v. Bittrolff, 302 AD2d 439).
In light of the foregoing, we find that the court improvidently exercised its discretion when it granted defendant's motion, inter alia, to vacate the default judgment entered against it ( see Epps v. LaSalle Bus, 271 AD2d 400).