Borrie v. County of Suffolk

88 A.D.3d 842, 931 N.Y.2d 510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

In opposition to the plaintiffs cross motion for leave to enter a judgment against the defendant County of Suffolk upon its default in answering or appearing, the County was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Kouzios v Dery, 57 AD3d 949 [2008]; Giovanelli v Rivera, 23 AD3d 616 [2005]; Mjahdi v Maguire, 21 AD3d 1067, 1068 [2005]; see also Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]). The County failed to proffer a reasonable excuse for its default in answering or for its four-month delay in making an untimely motion pursuant to CPLR 3211 (a) (7) (see CPLR 320 [a]; 3211 [e]; Bennett v Hucke, 64 AD3d 529, 530 [2009]). On its motion for leave to renew, the County did not offer a reasonable justification for its failure to present the alleged new facts on the prior cross motion (see CPLR 2221 [d]). Furthermore, the new facts presented by the County failed to demonstrate a reasonable excuse for the default in answering the complaint or appearing in the action (see White v Daimler Chrysler Corp., 44 AD3d 651, 652 [2007]; Everything Yogurt v Toscano, 232 AD2d 604, 606 [1996]; P & K Marble v Pearce, 168 AD2d 439 [1990]).

Accordingly, that branch of the County’s motion which was for leave to renew its opposition to the plaintiffs cross motion for leave to enter a default judgment against it should have been denied. Rivera, J.E, Florio, Eng, Hall and Cohen, JJ., concur.