Nine Bros. Construction Co. v. Gordon

201 A.D.2d 632, 609 N.Y.S.2d 821, 1994 N.Y. App. Div. LEXIS 1470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1994
• Status: Published

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 8, 1991, which denied its motion to vacate a judgment entered upon its default in appearing for jury selection. The appeal brings up for review so much of an order of the same court, dated January 8, 1992, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated October 8, 1991, is dismissed, without costs or disbursements, as that order was superseded by the order dated January 8, 1992, made upon reargument; and it is further,

Ordered that the order dated January 8, 1992, is affirmed insofar as reviewed, without costs or disbursements.

Since the plaintiff failed to demonstrate a meritorious cause of action, the court did not improvidently exercise its discretion in denying the plaintiff’s motion to vacate the judgment entered upon its default in appearing for jury selection (see, CPLR 2005, 5015 [a] [1]; Zapell v Mecca, 190 AD2d 791; Giordano v Patel, 177 AD2d 468; Brown v Ryder Truck Rental, 172 AD2d 477). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.