Opinion
2018–09667 Index No. 22716/12
12-30-2020
Ovidiu Marcel DEAC, appellant, v. IL POSTINO, INC., et al., respondents.
Ovidiu Marcel Deac, Maspeth, NY, appellant pro se.
Ovidiu Marcel Deac, Maspeth, NY, appellant pro se.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (David Elliot, J.), dated June 14, 2018. The order denied the plaintiff's motion, among other things, for summary judgment on the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
We agree with the Supreme Court's determination denying the plaintiff's motion, inter alia, for summary judgment on the complaint. The court directed dismissal of the action in an order dated June 29, 2016, which granted, without opposition, the defendants' motion for summary judgment dismissing the complaint. The plaintiff could not move for summary judgment on the complaint without first vacating the order dated June 29, 2016. The proper procedure for challenging an order made on default is for the defaulting party to move to vacate his or her default, submitting evidence in admissible form demonstrating both a reasonable excuse for his or her default and a potentially meritorious cause of action (see Countrywide Home Loans, Inc. v. Vittorio, 178 A.D.3d 1017, 116 N.Y.S.3d 83 ; Matter of Renner v. Costigan, 125 A.D.3d 664, 665, 4 N.Y.S.3d 53 ; Matter of Geraldine Rose W., 196 A.D.2d 313, 315–318, 609 N.Y.S.2d 324 ).
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.