Dougherty v. County of Nassau

167 A.D.2d 989, 562 N.Y.S.2d 2, 1990 N.Y. App. Div. LEXIS 14352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1990
• Status: Published

Opinion

Order unanimously reversed in the exercise of discretion with costs and default judgment granted. Memorandum: After defendants’ failure to answer plaintiff’s summons and complaint, plaintiff’s counsel notified defendants’ counsel of the default and gave him an opportunity to serve an answer. Defendants failed to respond and plaintiff’s attorney then moved for a default. The court gave defendants a second opportunity to avoid the consequences of their default by denying plaintiff’s motion and vacating defendants’ default upon the condition that defendants pay a minimum penalty of $250 within 20 days of service of the order. Defendants failed to comply with that conditional order. Plaintiff’s attorney again moved for entry of a default judgment. In response, defendants failed to present in proper evidentiary form any reasonable excuse for the default or a meritorious defense (CPLR 3012 [d]). Absent such a showing, particularly under the facts of this case, Special Term abused its discretion in denying plaintiff’s motion for a default judgment (see, Egan v Federated Dept. Stores, 108 AD2d 718). (Appeal from order of Supreme Court, Nassau County, Wager, J.—default judgment.) Present—Boomer, J. P., Green, Pine, Balio and Lawton, JJ.