Opinion
2010-00772.
Submitted: September 22, 2010.
March 10, 2011.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated October 26, 2009, which denied his motion for leave to enter judgment on the issue of liability against the defendants upon their default in answering, and granted the defendants' motion to vacate their default and for leave to serve a late answer.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for leave to enter judgment against the defendants on the issue of liability is granted, and the defendants' motion to vacate their default and for leave to serve a late answer is denied.
Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant.
Hammill, O'Brien, Croutier, Dempsey, Pender Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for respondents.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, PLUMMER E. LOTT, JJ.
DECISION ORDER
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FROM: Paul Seidenstock Supervisor of Decision Department
Attached is a copy of the decision and order on motion of this Court dated March 10, 2011, in the case of Blaut v Berkovits, which recalls and vacates the decision and order of this Court dated October 26, 2010, a copy of which is also attached.
The revised portions are highlighted in yellow.
The Supreme Court erred in excusing the defendants' default in failing to timely answer the complaint. Although the delay in answering was relatively short, the defendants failed to provide any satisfactory explanation for the delay, and they failed to make any showing of any potentially meritorious defense to the plaintiff's claims ( see CPLR 5015[a][1]; Giovanelli v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067; Thompson v Steuben Realty Corp., 18 AD3d 864; Dinstber v Fludd, 2 AD3d 670, 671).
MASTRO, J.P., FLORIO, DICKERSON, BELEN and LOTT, JJ., concur.
DECISION ORDER ON MOTION
Motion by the respondents to vacate a decision and order of this Court dated October 26, 2010, which determined an appeal from an order of the Supreme Court, Kings County, dated October 26, 2009.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that on the Court's own motion, the decision and order of this Court dated October 26, 2010, is recalled and vacated on the ground that the appellant died on October 17, 2010; and it is further,
ORDERED that on the Court's own motion, the appeal is held in abeyance pending the appointment of a personal representative for the appellant's estate ( see CPLR 1015[a], 1021); and it is further,
ORDERED that the motion by the respondents is dismissed.
MASTRO, J.P., FLORIO, DICKERSON, BELEN and LOTT, JJ., concur.