Labarca v. Rauf

14 A.D.3d 597, 787 N.Y.S.2d 889, 2005 N.Y. App. Div. LEXIS 560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries and for property damage, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated January 6, 2004, as denied their motion for a default judgment against the defendant Irina Belova upon her failure to appear or answer the complaint and granted the cross motion of that defendant to the extent of vacating her default in answering the complaint and permitting her to answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

To successfully oppose the plaintiffs’ motion for leave to enter a default judgment against her, the respondent was required to demonstrate a reasonable excuse for her default in answering and a meritorious defense (see Dinstber v Fludd, 2 AD3d 670, 671 [2003]; Albano v Nus Holding Corp., 233 AD2d 280, 281 [1996]). The respondent made that showing. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter a default judgment, vacating the respondent’s default, and permitting her to answer. Florio, J.P., Adams, Goldstein, Rivera and Spolzino, JJ., concur.