Ocasio v. City of New York

186 A.D.2d 520

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1992
• Status: Published

Opinion

— Order, Supreme Court, Bronx County (Hansel McGee, J.), entered January 30, 1992, which, inter alia, denied plaintiff’s motion to vacate her default and to vacate a January 15, 1988 order dismissing the action, unanimously affirmed, without costs.

CPLR 5015 (a) (1) provides that a court may relieve a party from a judgment or order upon the ground of excusable default. To demonstrate an excusable default, the party seeking to vacate the default judgment must demonstrate both a valid excuse for the default and a meritorious claim in the underlying action (see, Tandy Computer Leasing v Video X Home Lib., 124 AD2d 530, 531). In this case plaintiff had notice that an order dismissing the complaint had been entered, and we reject as without merit plaintiff’s claimed reliance upon certain alleged technical shortcomings in the notice of entry as an excuse for a delay of more than three years in moving to vacate the default. We further find that plaintiff has failed to rebut the presumption that the action was abandoned (see, Murphy v City of New York, 173 AD2d 236). Concur — Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.