Levy v. Cusumano

204 A.D.2d 519, 614 N.Y.S.2d 201, 1994 N.Y. App. Div. LEXIS 5294

Opinion

—In an action to recover damages for breach of contract, conversion, and fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated October 5, 1992, which denied their motion for leave to enter a default judgment in their favor against the defen dants Anthony Pariti and Carol Pariti based on their default in timely serving an answer.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for an inquest to determine the amount of damages.

As a general rule, a default will be vacated and a late answer will be permitted and deemed timely served where a defendant can show that there is some merit to his or her defense and that there is some reasonable excuse for the default (see, McFadden v Battaglia, 159 AD2d 700; Klenk v Kent, 103 AD2d 1002). Here, the defendants Anthony and Carol Pariti have not only failed to show that they had a meritorious defense, but they have also failed to offer any explanation for their more than eight-month delay in serving an answer. Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.