Opinion
2012-04-10
Sean A. PIMENTO, et al., appellants, v. Stephanie ROJAS, respondent.
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellants. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellants. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (McDonald, J.), entered September 27, 2011, which granted the defendant's motion to vacate an order of the same court dated April 25, 2011, granting the plaintiffs' unopposed motion for leave to enter a default judgment upon her failure to appear or answer the complaint, and directing an inquest on damages.
ORDERED that the order is affirmed, with costs.
A defendant seeking to vacate a default must demonstrate both a reasonable excuse for the default and a meritorious defense ( see Assael v. 15 Broad St., LLC, 71 A.D.3d 802, 896 N.Y.S.2d 459; Abdul v. Hirschfield, 71 A.D.3d 707, 898 N.Y.S.2d 44; Canty v. Gregory, 37 A.D.3d 508, 829 N.Y.S.2d 694). The determination of what is a reasonable excuse is generally left to the sound discretion of the Supreme Court ( see Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 808 N.Y.S.2d 763; Ruppell v. Hair Plus Beauty, 288 A.D.2d 205, 733 N.Y.S.2d 95). Here, the Supreme Court did not improvidently exercise its discretion in finding that the defendant had failed to present a reasonable excuse sufficient to warrant vacating her default under CPLR 5015(a)(1).
However, the Supreme Court also did not improvidently exercise its discretion in vacating the defendant's default pursuant to CPLR 317. That statutory provision permits a defendant who has been “served with a summons other than by personal delivery” to seek relief from a default upon a showing that it did not receive notice of the summons in time to defend and has a meritorious defense (CPLR 317; see Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 728, 469 N.Y.S.2d 74, 456 N.E.2d 1197; Franklin v. 172 Aububon Corp., 32 A.D.3d 454, 455, 819 N.Y.S.2d 785; Brockington v. Brookfield Dev. Corp., 308 A.D.2d 498, 764 N.Y.S.2d 469; Samet v. Bedford Flushing Holding Corp., 299 A.D.2d 404, 405, 749 N.Y.S.2d 566). The affidavits submitted by the defendant herein set forth sufficient facts to warrant relief from her default under CPLR 317.