Cardona v. Spicer

Appellate Division of the Supreme Court of New York

Cardona v. Spicer

17 A.D.3d 389, 792 N.Y.S.2d 335, 2005 N.Y. App. Div. LEXIS 3755

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 2005

StatusPublished

This text of 17 A.D.3d 389 (Cardona v. Spicer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cardona v. Spicer, 17 A.D.3d 389, 792 N.Y.S.2d 335, 2005 N.Y. App. Div. LEXIS 3755 (N.Y. Ct. App. 2005).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J), dated September 21, 2004, as granted the defendants’ motion to vacate a prior order of the same court dated May 25, 2004, granting their motion for leave to enter judgment against the defendants upon their default in appearing or answering, deemed the defendants’ answer served, and vacated the note of issue.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants’ motion is denied, and the order dated May 25, 2004, and the note of issue are reinstated.

[390]*390A defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393, 394 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The defendants failed to demonstrate a reasonable excuse, inter alia, for the full period of the delay. Accordingly, the Supreme Court erred in granting the defendants’ motion to vacate their default, deeming their answer served, and vacating the note of issue. Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J), dated September 21, 2004, as granted the defendants’ motion to vacate a prior order of the same court dated May 25, 2004, granting their motion for leave to enter judgment against the defendants upon their default in appearing or answering, deemed the defendants’ answer served, and vacated the note of issue.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants’ motion is denied, and the order dated May 25, 2004, and the note of issue are reinstated.

[390]*390A defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393, 394 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The defendants failed to demonstrate a reasonable excuse, inter alia, for the full period of the delay. Accordingly, the Supreme Court erred in granting the defendants’ motion to vacate their default, deeming their answer served, and vacating the note of issue. Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.

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Bluebook (online)

17 A.D.3d 389, 792 N.Y.S.2d 335, 2005 N.Y. App. Div. LEXIS 3755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardona-v-spicer-nyappdiv-2005.

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