Opinion
Submitted November 1, 2000.
December 12, 2000.
In an action, inter alia, for partition of certain real property, the defendant appeals from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated April 5, 2000, which denied his motion for leave to vacate his default in responding to a motion, and (2) an order of the same court dated May 9, 2000, which granted the plaintiff's motion for the return of certain money held in escrow, upon the defendant's default in responding to the motion.
Marshall G. Kaplan, Brooklyn, N.Y., for appellant.
Litman, Asche Gioiella, LLP, New York, N.Y. (Richard M. Asche and Thomas H. Burt of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated May 9, 2000 is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511); and, it is further,
ORDERED that the order dated April 5, 2000, is affirmed, without costs and disbursements.
It is well settled that a defendant attempting to vacate a default must establish both a reasonable excuse for the default and a meritorious defense (see, CPLR 5015[a][1]; Putney v. Pearlman, 203 A.D.2d 333). Here, the defendant failed to offer a reasonable excuse for his failure to appear in response to the plaintiff's motion for the return of certain money. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to vacate his default (see, Matter of Ping Lee v. City of New York, 233 A.D.2d 510).