Estrella v. Herrera

23 A.D.3d 320, 804 N.Y.S.2d 315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered December 3, 2002, which, in an action for personal injuries, insofar as appealed from, granted plaintiffs’ motion for a default judgment as against defendant-appellant, and order, same court and Justice, entered March 25, 2003, which, insofar as appealable, denied defendant-appellant’s motion to renew, unanimously affirmed, without costs.

Defendant, who was given notice of plaintiffs’ motion for a default judgment (but see CPLR 3215 [g] [1]), opposed the motion on the ground that plaintiffs unreasonably refused to accept the answer he served some 14 months after he was served with the summons and complaint. The argument was properly rejected for failure to show a reasonable excuse for the delay (see 114 W. 26th St. Assoc. v Fortunak, 22 AD3d 346 [2005]). We reject defendant’s alternative argument that plaintiffs waived the default by failing to return his answer, which was served after the motion for a default judgment was made. The motion for a default judgment was properly granted on the additional ground that defendant’s opposition did not contain an affidavit of merit (see id.). Defendant’s attempt to correct this latter defect by moving for renewal could not avail absent a concurrent showing of a reasonable excuse for the delay (see Time Warner City Cable v Tri State Auto, 5 AD3d 153 [2004], appeal dismissed 3 NY3d 656 [2004]). Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.