Shapiro v. Ray

306 A.D.2d 267, 760 N.Y.S.2d 360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 2003
• Status: Published

Opinion

—In an action to impose a constructive trust, the defendant appeals from a judgment of the Supreme Court, Kings County (Mason, J.), entered June 12, 2002, which, upon an order of the same court dated March 28, 2002, granting the plaintiffs’ motion for leave to enter a judgment upon his failure to appear or answer, and upon an order of the same court dated June 4, 2002, which, inter alia, denied his motion to vacate his default, is in favor of the plaintiffs and against him.

The defendant’s notice of appeal from the order dated June 4, 2002, is deemed to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

A party seeking to vacate a judgment or order entered upon his or her default must demonstrate a reasonable excuse for the delay and make a prima facie showing of legal merit (see Cilindrello v Rayabin, 297 AD2d 699 [2002]). In this case the defendant did neither. Therefore, the Supreme Court properly denied the defendant’s motion to vacate his default (see Brancoveanu v Brancoveanu, 156 AD2d 410 [1989]). Prudenti, P.J., Ritter, Adams and Cozier, JJ., concur.