McCray v. Smith

298 A.D.2d 368, 751 N.Y.S.2d 239, 2002 N.Y. App. Div. LEXIS 9434

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Asia L. Smith appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated October 15, 2001, which denied her motion to vacate an order of the same court dated June 11, 2001, granting, on her default, the plaintiff’s motion for leave to enter judgment against her, upon her default in answering.

Ordered that the order is affirmed, with costs.

By making an earlier motion (erroneously denominated as a cross motion) to compel acceptance of her answer, bereft of any jurisdictional defense, the appellant waived the only basis she would have had to vacate her default in this action (see International Bus. Machs. Corp. v Murphy & O’Connell, 172 AD2d 157, 158). Had the appellant preserved her jurisdictional defense, she might have been entitled to a hearing on the issue of the propriety of the service of process whether or not she showed a meritorious defense (see Laurenzano v Laurenzano, 222 AD2d 560). While the appellant may have established a meritorious defense (see Anamdi v Anugo, 229 AD2d 408), she proffered neither an excuse for her default in responding to the plaintiff’s motion for leave to enter a default judgment nor any reasonable excuse for her default in the action (see Gray v B.R. Trucking Co., 59 NY2d 649, 650; cf. Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; Mita v Bianchi, 286 AD2d 376). Accordingly, the Supreme Court correctly denied the appellant’s motion. Florio, J.P., O’Brien, Friedmann, Adams and Crane, JJ., concur.