Hokayem v. Leland

Appellate Division of the Supreme Court of New York

Hokayem v. Leland

226 A.D.2d 345, 640 N.Y.S.2d 763, 1996 N.Y. App. Div. LEXIS 3350

Appellate Division of the Supreme Court of the State of New York·Decided April 1, 1996·Published·Cited by 1 cases

Opinion

In a negligence action, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated August 9,1994, which, inter alia, granted the motion of the defendant Lawrence Fattorusso to vacate a default judgment entered against him for failing to answer the complaint and granted him leave to serve a late answer.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is denied.

In moving to vacate a default judgment entered against him, the respondent was required to establish both a valid excuse for the default and a meritorious defense to the underlying action (see, Matter of Hostomsky v Electronic Data Sys. Corp., 214 AD2d 733; Schiavetta v McKeon, 190 AD2d 724). In this case, the respondent failed to proffer a reasonable excuse for his delay of seven months in serving an answer. The record shows a pattern of repeated neglect and intentional default. Accordingly, it was an improvident exercise of discretion to vacate the default judgment (see, Torres v Houses ”R” Us, 182 AD2d 684; Perellie v Crimson’s Rest., 108 AD2d 903; Passalacqua v Banat, 103 AD2d 769). Balletta, J. P., Sullivan, Joy and Krausman, JJ., concur.

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In a negligence action, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated August 9,1994, which, inter alia, granted the motion of the defendant Lawrence Fattorusso to vacate a default judgment entered against him for failing to answer the complaint and granted him leave to serve a late answer.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is denied.

In moving to vacate a default judgment entered against him, the respondent was required to establish both a valid excuse for the default and a meritorious defense to the underlying action (see, Matter of Hostomsky v Electronic Data Sys. Corp., 214 AD2d 733; Schiavetta v McKeon, 190 AD2d 724). In this case, the respondent failed to proffer a reasonable excuse for his delay of seven months in serving an answer. The record shows a pattern of repeated neglect and intentional default. Accordingly, it was an improvident exercise of discretion to vacate the default judgment (see, Torres v Houses ”R” Us, 182 AD2d 684; Perellie v Crimson’s Rest., 108 AD2d 903; Passalacqua v Banat, 103 AD2d 769). Balletta, J. P., Sullivan, Joy and Krausman, JJ., concur.

Hokayem v. Leland, 226 A.D.2d 345, 640 N.Y.S.2d 763, 1996 N.Y. App. Div. LEXIS 3350 (N.Y. Ct. App. 1996).

Pincite

226 A.D.2d 345 (Hokayem v. Leland) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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