Blake v. Ponce-DeLeon

17 A.D.3d 614, 792 N.Y.S.2d 904, 2005 N.Y. App. Div. LEXIS 4416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated September 10, 2004, which granted the plaintiffs motion for leave to enter judgment against them upon their failure to appear or answer, and denied their cross motion to compel the plaintiff to accept their answer.

Ordered that the order is affirmed, with costs.

“[A] defendant seeking to successfully oppose a motion for leave to enter a judgment upon the failure to serve an answer must demonstrate a reasonable excuse for his [or her] delay and the existence of a meritorious defense” (Beresford v Waheed, 288 AD2d 170 [2001]; see also Gurreri v Village of Briarcliff Manor, 249 AD2d 508 [1998]). Here, the defendants failed to demonstrate either of these criteria (see Toure v Harrison, 6 AD3d 270 [2004]; Beresford v Waheed, supra; Mendiolaza v Novinski, 268 AD2d 462 [2000]). Accordingly, the Supreme Court properly granted the plaintiffs motion for leave to enter judgment against them upon their failure to appear or answer and denied the defendants’ cross motion to compel the plaintiff to accept their answer (see CPLR 3215 [f|; Toure v Harrison, supra).

The defendants’ remaining contentions either are without merit or are improperly raised for the first time on appeal. Adams, J.P., Krausman, Rivera and Lifson, JJ., concur.