Eaves v. Ocana

122 A.D.2d 18, 504 N.Y.S.2d 187, 1986 N.Y. App. Div. LEXIS 59089

Opinion

— In a negligence action to recover damages for personal injuries, the defendant Miguel Ocana appeals from an order of the Supreme Court, Kings County (Golden, J.), dated September 11, 1985, which denied his motion, pursuant to CPLR 3215 (c), for an order dismissing the complaint as against him.

Order reversed, on the law, without costs or disbursements, motion granted and complaint dismissed as against the defendant Miguel Ocana.

In order to defeat a motion pursuant to CPLR 3215 (c), an opposing plaintiff is required to show both a reasonable and acceptable excuse for the delay and that his cause has merit (Finan v Queens Tr. Corp., 100 AD2d 951). Since no such showing was made, it was error for Special Term to deny the appellant’s motion to dismiss the complaint as against him (cf. Woodward v City of New York, 119 AD2d 749). Weinstein, J. P., Niehoff, Lawrence and Kooper, JJ., concur.