O'Shea v. Bittrolff

302 A.D.2d 439, 753 N.Y.S.2d 737

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated March 7, 2002, as granted the defendant’s motion to vacate an order of the same court dated May 16, 2001, granting the plaintiffs motion for leave to enter judgment upon the defendant’s default in appearing or answering.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the order dated May 16, 2001, is reinstated.

It is incumbent upon a defendant moving to vacate a default judgment to show a reasonable excuse for the default and the existence of a meritorious defense (see Koslosky v Koslosky, 267 AD2d 357). The defendant did not offer a reasonable excuse for his default. The only excuse offered for the failure to serve a timely answer and to oppose the plaintiffs motion for leave to enter a default judgment was delay caused by the defendant’s insurance carrier, which is insufficient (see Miles v Blue Label Trucking, 232 AD2d 382). Florio, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.