Spells v. A&P Supermarkets, Inc.

253 A.D.2d 422, 675 N.Y.S.2d 310, 1998 N.Y. App. Div. LEXIS 8793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated July 24, 1997, which granted the plaintiffs motion to vacate a prior order of the same court dated June 27, 1996, granting the defendant’s motion for summary judgment upon her default in opposing the motion, and to restore the action to the trial calendar.

Ordered that the order is reversed, as a matter of discretion, with costs, the plaintiffs motion is denied, and the order dated June 27, 1996, is reinstated.

Because the plaintiff failed to establish both a reasonable excuse for her default and a meritorious claim, the Supreme Court improvidently exercised its discretion in granting her motion to vacate her default in opposing the defendant’s motion for summary judgment (see, Roussodimou v Zafiriadis, 238 AD2d 568; Rock v Schwartz, 244 AD2d 542; Peterson v Scandurra Trucking Co., 226 AD2d 691; Olivier v Rosal-Arcillas, 204 AD2d 701; CPLR 5015, 2005; cf., Long Is. Sav. Bank v Sutphen, 222 AD2d 660; McMahon v City of New York, 105 AD2d 101).

The plaintiffs remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Ritter and Krausman, JJ., concur.