Neshewat v. Neshewat

253 A.D.2d 801, 677 N.Y.S.2d 508, 1998 N.Y. App. Div. LEXIS 9569

Opinion

In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Bernhard, J.), dated June 24, 1997, which granted the motion of the defendant for renewal of the plaintiff’s prior unopposed motion for leave to enter a default judgment on the defendant’s default in appearing or answering and for an assessment of damages, and, upon renewal, in effect, denied the plaintiff’s motion and vacated the defendant’s default.

Ordered that the order is modified, on the law, by deleting the last sentence thereof and substituting therefor a provision that, upon renewal, the original determination is adhered to; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Dutchess County, for an assessment of damages.

Since, on this record, the defendant failed to demonstrate a reasonable excuse for his delay in appearing or answering and a meritorious defense, the Supreme Court erred in vacating the default (see, Epstein v Nieves, 234 AD2d 503). Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.