Mount Sinai Hospital of Queens v. Hertz Corp.

3 A.D.3d 523, 770 N.Y.S.2d 757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2004
• Status: Published

Opinion

In an action to recover no-fault benefits under an insurance contract, the defendants appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), entered May 23, 2003, which denied their motion to vacate a judgment of the same court entered January 9, 2003, upon their failure to appear or answer.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a judgment entered upon its failure to appear or answer a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Manigat v Louis, 262 AD2d 289 [1999]). Generally, the determination whether to set aside a default is left to the sound discretion of the Supreme Court, the exercise of which will not be disturbed if there is support in the record (see Gurreri v Village of Briarcliff Manor, 249 AD2d 508 [1998]; MacMarty, Inc. v Scheller, 201 AD2d 706 [1994]). In the instant case, the defendants failed to present a reasonable excuse for their default and failed to establish a meritorious defense. Thus, their motion to vacate the judgment entered upon their failure to appear or answer the complaint was properly denied. Florio, J.P., Krausman, Luciano, Townes and Rivera, JJ, concur.