Shmarkatyuk v. Chouchereba

Appellate Division of the Supreme Court of New York

Shmarkatyuk v. Chouchereba

291 A.D.2d 487, 738 N.Y.S.2d 367, 2002 N.Y. App. Div. LEXIS 1864

Appellate Division of the Supreme Court of the State of New York·Decided February 19, 2002·Published·Cited by 4 cases

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Joseph Pitre appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated September 6, 2001, which denied his motion to vacate his default in answering the complaint.

Ordered that the order is affirmed, with costs.

A court may excuse a default in answering upon a showing of a meritorious defense and a justifiable excuse for the default (see, Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138). It is within the court’s discretion whether, in the interest of justice, to excuse delay or default resulting from law office failure (see, CPLR 2005; Korea Exch. Bank v Attilio, 186 AD2d 634). The conclusory statement of the appellant’s counsel that his support staff was away on vacation was insufficient to excuse the default (see, Fuller v Tae Kwon, 259 AD2d 662). Furthermore, the appellant failed to demonstrate a meritorious defense to the action (see, Agin v Rehfeldt, 284 AD2d 352, [488]*488lv denied 97 NY2d 603; Welch v Norman, 282 AD2d 448; Stiles v County of Dutchess, 278 AD2d 304). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant Joseph Pitre appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated September 6, 2001, which denied his motion to vacate his default in answering the complaint.

Ordered that the order is affirmed, with costs.

A court may excuse a default in answering upon a showing of a meritorious defense and a justifiable excuse for the default (see, Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138). It is within the court’s discretion whether, in the interest of justice, to excuse delay or default resulting from law office failure (see, CPLR 2005; Korea Exch. Bank v Attilio, 186 AD2d 634). The conclusory statement of the appellant’s counsel that his support staff was away on vacation was insufficient to excuse the default (see, Fuller v Tae Kwon, 259 AD2d 662). Furthermore, the appellant failed to demonstrate a meritorious defense to the action (see, Agin v Rehfeldt, 284 AD2d 352, [488]*488lv denied 97 NY2d 603; Welch v Norman, 282 AD2d 448; Stiles v County of Dutchess, 278 AD2d 304). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.

Shmarkatyuk v. Chouchereba, 291 A.D.2d 487, 738 N.Y.S.2d 367, 2002 N.Y. App. Div. LEXIS 1864 (N.Y. Ct. App. 2002).

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