Phillips, Nizer, Benjamin, Krim & Ballon v. Matteo

271 A.D.2d 422, 706 N.Y.S.2d 898, 2000 N.Y. App. Div. LEXIS 3785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2000
• Status: Published

Opinion

—In an action to recover legal fees, the defendant appeals from an order of the Supreme Court, Queens County (Milano, J.), dated March 2, 1999, which, inter alia, denied his motion to vacate a judgment of the same court, dated November 19, 1997, entered upon his default in appearing in the action.

Ordered that the order is affirmed, without costs or disbursements.

To succeed on a motion to vacate a judgment entered upon a default, the movant must demonstrate both a valid excuse for the default and a meritorious defense to the underlying action (see, CPLR 5015 [a]; MRI Enters. v Amanat, 263 AD2d 530; Louisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court, and as a general rule, its determination will not be disturbed on appeal (see, Manigat v Louis, 262 AD2d 289; Roussodimou v Zafiriadis, 238 AD2d 568; Bardales v Blades, 191 AD2d 667).

Here the trial court providently exercised its discretion in denying the defendant’s motion, since the defendant failed to demonstrate a reasonable excuse for his default. In light of this conclusion, we need not consider whether the defendant established the existence of a meritorious defense. Santucci, J. P., Joy, Thompson and Goldstein, JJ., concur.