Opinion
2001-09326
Argued February 21, 2002.
April 1, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated August 27, 2001, as denied that branch of her motion which was to vacate her default in appearing and, in effect, denied that branch of her motion which was for summary judgment dismissing the complaint.
Caputi, Weintraub Neary, Huntington, N.Y. (Mark E. Nadjar of counsel), for appellant.
Mandler Sieger, LLP, Westbury, N.Y. (Peter A. Mandler of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was to vacate the default and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
Under the circumstances of this case, the defendant has demonstrated both a reasonable excuse for her default and a meritorious defense to the action. Accordingly, the defendant was entitled to vacatur of her default (see, Loria v. Plesser, 267 A.D.2d 213; DeRisi v. Santoro, 262 A.D.2d 270).
However, so much of the order as, in effect, denied that branch of the motion which was for summary judgment dismissing the complaint was proper. As no discovery has taken place in this case, the motion for summary judgment was premature (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Brown v. County of Nassau, 226 A.D.2d 492).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and H. MILLER, JJ., concur.