Opinion
2003-01356.
Decided March 1, 2004.
In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 19, 2002, which denied their motion for leave to enter a default judgment against the defendant Lucine Anzelone, a/k/a Lucine Goldman, upon her failure to timely serve an answer to the complaint, and deemed the answer served by that defendant timely.
Dean Nasca, Bayport, N.Y., appellant pro se and for appellant Nasca-Wigand Organization.
McCabe, Collins, McGeough Fowler, LLP, Mineola, N.Y. (Patrick J. Engle of counsel), for respondent and defendant Hough Guidice Realty Associates, Inc.
Before: A. GAIL PRUDENTI, P.J., HOWARD MILLER, ROBERT W. SCHMIDT and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
The Supreme Court erred in denying the plaintiff's motion for leave to enter a default judgment against the defendant Lucine Anzelone, a/k/a Lucine Goldman (hereinafter Anzelone), since Anzelone failed to provide a reasonable excuse for her default and to demonstrate a meritorious defense to the action ( see Ennis v. Lema, 305 A.D.2d 632). Further, contrary to Anzelone's contention, the plaintiffs did not waive the late service and the default since the answer was served after the plaintiffs moved for leave to enter a default judgment ( see Brenner v. Cross County Shopping Ctr., 308 A.D.2d 469; cf. Ligotti v. Wilson, 287 A.D.2d 550).
We have not considered those portions of the brief submitted by Anzelone which are dehors the record in reaching our determination ( see Carhuff v. Barnett's Bake Shop, 54 A.D.2d 969).
The parties' remaining contentions have been rendered academic in light of our determination.
PRUDENTI, P.J., H. MILLER, SCHMIDT and COZIER, JJ., concur.