Rodriguez v. Read

266 A.D.2d 271, 698 N.Y.S.2d 510, 1999 N.Y. App. Div. LEXIS 13065

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Pedro Read and Agustina Delacruz appeal from (1) an order of the Supreme Court, Queens County (Dye, J.), dated October 19, 1998, denying their motion to vacate an order of the same court dated. May 5, 1998, which, upon the failure of the appellants to appear or answer, in effect, granted the plaintiffs’ motion for leave to enter a judgment on liability, and (2) an order of the same court, dated February 17, 1999, which denied their motion for reargument.

Ordered that the appeal from the order dated February 17, 1999, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated October 19, 1998, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

A party attempting to vacate a default must establish both a reasonable excuse for the default and a meritorious defense (see, Roussodimou v Zafiriadis, 238 AD2d 568; Putney v Pearlman, 203 AD2d 333). Since the appellants failed to do so, their motion to vacate the order which, in effect, granted the plaintiffs’ motion for leave to enter a judgment on liability, was properly denied. Ritter, J. P., Joy, McGinity and Smith, JJ., concur.