Mantilla v. Lewkowitz

130 A.D.2d 557, 515 N.Y.S.2d 498, 1987 N.Y. App. Div. LEXIS 46556

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated March 3, 1986, which denied her motion pursuant to CPLR 5015 to vacate a default judgment dated April 12, 1983.

Ordered that the order is affirmed, without costs or disbursements.

Under the circumstances of this case, the Supreme Court’s order which denied the defendant’s motion to vacate her default was not an abuse of discretion. Regardless of whether the defendant’s application was untimely (CPLR 5015 [a] [1]), there is no justification for allowing nearly three years to lapse after the denial of her prior motion to vacate her default before coming forward with this application to vacate on the ground of excusable default. Moreover, we find that the defendant failed to establish a reasonable excuse for her failure to respond to the summons and complaint which were personally served upon her. Further, her untimely denial of ownership of the dog which was alleged to have bitten plaintiff and her unsubstantiated claim that she was out of the country at the time of the incident, fail to adequately establish that she has a meritorious defense. Bracken, J. P., Brown, Weinstein and Rubin, JJ., concur.