Rockmaker v. Alphonse

221 A.D.2d 617, 635 N.Y.S.2d 492, 1995 N.Y. App. Div. LEXIS 12458

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vinik, J.), dated July 12, 1994, which granted the defendant Philippe M. Alphonse’s motion for leave to vacate a default judgment entered against him dated September 7, 1993. The appeal brings up for review so much of an order of the same court, dated November 15, 1994, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated July 12, 1994, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 15, 1994, made upon reargument; and it is further,

Ordered that the order dated November 15, 1994, is affirmed insofar as reviewed, without costs or disbursements.

Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion by the defendant Philippe M. Alphonse to vacate the default judgment since Alphonse established a reasonable excuse for his default and a meritorious defense (see, Fennell v Mason, 204 AD2d 599; Putney v Pearlman, 203 AD2d 333). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.