J. P. Equipment Rental & Materials L. L. C. v. Fidelity & Guaranty Insurance

Appellate Division of the Supreme Court of New York

J. P. Equipment Rental & Materials L. L. C. v. Fidelity & Guaranty Insurance

288 A.D.2d 187, 732 N.Y.S.2d 354, 2001 N.Y. App. Div. LEXIS 10460

Appellate Division of the Supreme Court of the State of New York·Decided November 5, 2001·Published·Cited by 10 cases

Opinion

—In an action to recover upon two labor and material payment bonds, the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered March 2, 2001, which denied its motion to vacate a judgment entered December 21, 2000, upon its failure to appear or answer.

Ordered that the order is affirmed, with costs.

To succeed on a motion to vacate a judgment entered upon a default, a defendant must demonstrate both a reasonable excuse for the default and a meritorious defense to the underlying action (see, CPLR 5015 [a] [1]; Belesi v Gifford, 269 AD2d 552). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court and, as a general rule, its determination will not be disturbed (see, Parker v City of New York, 272 AD2d 310).

Here, the Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate the judgment entered upon its failure to appear and answer, since it failed to demonstrate a reasonable excuse for the default. In light of this determination, we need not consider whether the defendant established the existence of a meritorious defense (see, Phillips, Nizer, Benjamin, Krim & Ballon v Matteo, 271 AD2d 422). O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.

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—In an action to recover upon two labor and material payment bonds, the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered March 2, 2001, which denied its motion to vacate a judgment entered December 21, 2000, upon its failure to appear or answer.

Ordered that the order is affirmed, with costs.

To succeed on a motion to vacate a judgment entered upon a default, a defendant must demonstrate both a reasonable excuse for the default and a meritorious defense to the underlying action (see, CPLR 5015 [a] [1]; Belesi v Gifford, 269 AD2d 552). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court and, as a general rule, its determination will not be disturbed (see, Parker v City of New York, 272 AD2d 310).

Here, the Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate the judgment entered upon its failure to appear and answer, since it failed to demonstrate a reasonable excuse for the default. In light of this determination, we need not consider whether the defendant established the existence of a meritorious defense (see, Phillips, Nizer, Benjamin, Krim & Ballon v Matteo, 271 AD2d 422). O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.

J. P. Equipment Rental & Materials L. L. C. v. Fidelity & Guaranty Insurance, 288 A.D.2d 187, 732 N.Y.S.2d 354, 2001 N.Y. App. Div. LEXIS 10460 (N.Y. Ct. App. 2001).

Pincite

288 A.D.2d 187 (J. P. Equipment Rental & Materials L. L. C. v. Fidelity & Guaranty Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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