Legend Travel & Tours, Inc. v. Continental Airlines, Inc.

24 A.D.3d 112, 804 N.Y.S.2d 248

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered October 14, 2004, which, inter alia, denied plaintiffs motion to vacate an order entered on its default granting the motion of defendant Continental Airlines, Inc. to dismiss the action as against it, unanimously affirmed, without costs.

Vacatur of an order on the ground of excusable default requires a demonstration of both a reasonable excuse and the legal merit of the asserted claim or defense (see Dimitratos v City of New York, 180 AD2d 414 [1992]). The excuse proffered by plaintiff for its default, namely its former counsel’s incapacity, was not substantiated and, as such, was properly deemed insufficient by the motion court (see Matter of Gavrin, 294 AD2d 185 [2002]; Brown v Brown, 148 AD2d 377, 380-381 [1989]). Concur—Buckley, EJ., Tom, Saxe, Gonzalez and Malone, JJ.