Opinion
2012-02-7
Carolyn KOHN, etc., respondent, v. TRI–STATE HARDWOODS, LTD., appellant, et al., defendant.
Feldman Kieffer, LLP, Buffalo, N.Y. (Adam C. Ferrandino of counsel), for appellant.
In an action to recover damages for personal injuries and wrongful death, etc., the defendant Tri–State Hardwoods, Ltd., appeals from an order of the Supreme Court, Kings County (Schack, J.), dated February 7, 2011, which denied its motion for leave to enter a default judgment on its counterclaim.
ORDERED that the order is affirmed, without costs or disbursements.
It is undisputed that the plaintiff defaulted in serving a reply to the appellant's counterclaim and that the appellant failed to move for leave to enter a default judgment on the counterclaim within one year after the default. Since the appellant failed to make a timely motion for leave to enter a default judgment, it was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious claim ( see Giglio v. NTIMP, Inc., 86 A.D.3d 301, 308, 926 N.Y.S.2d 546; Costello v. Reilly, 36 A.D.3d 581, 828 N.Y.S.2d 172; Iorizzo v. Mattikow, 25 A.D.3d 762, 763, 807 N.Y.S.2d 663; Oparaji v. Madison Queens–Guy Brewer, 293 A.D.2d 591, 592, 740 N.Y.S.2d 237). The appellant failed to demonstrate a reasonable excuse for its delay of over two years after the one-year statutory time period had expired ( see Butindaro v. Grinberg, 57 A.D.3d 932, 933, 871 N.Y.S.2d 317; Mattera v. Capric, 54 A.D.3d 827, 828, 864 N.Y.S.2d 98; Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456; Opia v. Chukwu, 278 A.D.2d 394, 718 N.Y.S.2d 71). Accordingly, the appellant's motion for leave to enter a default judgment on the counterclaim was properly denied.
The appellant's remaining contention is without merit.