Paulucci v. Casa De Cuzzi, Inc.

272 A.D.2d 594, 709 N.Y.S.2d 833, 2000 N.Y. App. Div. LEXIS 6050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), entered June 23, 1999, which denied her motion pursuant to CPLR 5015 (a) (1) to vacate (a) an order of the same court dated December 4, 1998, which, upon her default, granted the motion of the defendant Casa De Cuzzi, Inc., to preclude her from offering any evidence at trial as to the matters demanded in its disclosure requests, and (b) an order of the same court dated April 16, 1999, which, upon her default, granted that defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

A motion to vacate a default is addressed to the sound discretion of the Supreme Court, whose determination should not be disturbed unless it is found to be an improvident exercise of discretion. To justify vacatur of a default, the plaintiff was required to demonstrate a reasonable excuse for failing to respond to the motions at issue, and a meritorious cause of action (see, First Fed. Sav. & Loan Assn, v O'Daly, 201 AD2d 532; Giordano v Patel, 177 AD2d 468). The plaintiff failed to make such a showing and, thus, under the circumstances, the Supreme Court providently exercised its discretion. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.