Jaskiel v. Tsatskis

57 A.D.3d 619, 868 N.Y.2d 550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2008
• Status: Published

Opinion

Contrary to the plaintiffs’ contention, the defendant, in connection with the original motion for leave to enter a default judgment, did not fully litigate the issues of whether he had a reasonable excuse for his default in appearing or answering the complaint or had a meritorious defense to the action. Consequently, the Supreme Court was not precluded from considering the defendant’s subsequent motion pursuant to CFLR 5015 (a) (1) to vacate his default in appearing or answering the complaint (see Szilaski v Aphrodite Constr. Co., 247 AD2d 532 [1998]; Britvan v Sutton & Edwards, 226 AD2d 491 [1996]; Picinic v Seatrain Lines, 117 AD2d 504, 507 [1986]). Moreover, the Supreme Court did not improvidently exercise its discretion in granting the defendant’s motion to vacate his default in appearing or answering the complaint since he tendered both a reasonable excuse for his delay in answering the complaint and a potentially meritorious defense (see Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d 429, 430 [2005]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.