Almonte v. Latortue

293 A.D.2d 431, 739 N.Y.S.2d 626, 2002 N.Y. App. Div. LEXIS 3381

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated August 27, 2001, as denied that branch of her motion which was to vacate her default in appearing and, in effect, denied that branch of her motion which was for summary judgment dismissing the complaint.

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was to vacate the default and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.

Under the circumstances of this case, the defendant has demonstrated both a reasonable excuse for her default and a meritorious defense to the action. Accordingly, the defendant was entitled to vacatur of her default (see, Loria v Plesser, 267 AD2d 213; DeRisi v Santoro, 262 AD2d 270).

However, so much of the order as, in effect, denied that branch of the motion which was for summary judgment dismissing the complaint was proper. As no discovery has taken place in this case, the motion for summary judgment was premature (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Brown v County of Nassau, 226 AD2d 492). Altman, J.P., Krausman, Goldstein and H. Miller, JJ., concur.