Schultz v. Ruggiero

129 A.D.2d 573, 514 N.Y.S.2d 71, 1987 N.Y. App. Div. LEXIS 45238

Opinion

In an action, inter alia, to recover damages for assault, the defendants appeal from so much of an order of the Supreme Court, Kings County (Krausman, J.), dated October 10, 1985, as denied that branch of their motion which was to vacate a default judgment against them on the ground of excusable default.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

A party attempting to vacate a judgment on the ground of excusable default (CPLR 5015 [a] [1]) must establish both that there is a reasonable excuse for the default and that there exists a meritorious claim or defense (see, Passalaequa v Banat, 103 AD2d 769). The default in the instant case was not excusable and the existence of a meritorious defense was not established. Mollen, P. J., Brown, Weinstein, Eiber and Harwood, JJ., concur.