Ricciardi v. Sharrin

302 A.D.2d 577, 755 N.Y.S.2d 313

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2003
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated September 18, 2001, which granted the plaintiffs motion to vacate an order of the same court, dated July 9, 2001, granting, without opposition, the defendants’ motion to stay the prosecution of the action pending arbitration and to compel arbitration.

Ordered that the order is affirmed, with costs.

To vacate a default, the movant must establish that its default was excusable (see Matter of Kindra B., 296 AD2d 456, 458 [2002]; Matter of Santiago v Santiago, 275 AD2d 429, 430 [2000]) and that it has a meritorious claim or defense (cf. Szilaski v Aphrodite Constr. Co., 247 AD2d 532 [1998]; Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). We agree with the Supreme Court that the plaintiff demonstrated both an excusable default and a meritorious defense to the defendants’ underlying motion to stay the action pending arbitration. Thus, the Supreme Court properly vacated the order granting the defendant’s motion to stay the prosecution of this action and to compel arbitration. Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.