Tauber v. Papa

278 A.D.2d 305, 718 N.Y.S.2d 189, 2000 N.Y. App. Div. LEXIS 12898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2000
• Status: Published

Opinion

In an action, inter alia, for partition of certain real property, the defendant appeals from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated April 5, 2000, which denied his motion for leave to vacate his default in responding to a motion, and (2) an order of the same court dated May 9, 2000, which granted the plaintiffs motion for the return of certain money held in escrow, upon the defendant’s default in responding to the motion.

Ordered that the appeal from the order dated May 9, 2000 is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511); and, it is further,

Ordered that the order dated April 5, 2000, is affirmed, without costs and disbursements.

It is well settled that a defendant attempting to vacate a default must establish both a reasonable excuse for the default and a meritorious defense (see, CPLR 5015 [a] [1]; Putney v Pearlman, 203 AD2d 333). Here, the defendant failed to offer a reasonable excuse for his failure to appear in response to the plaintiffs motion for the return of certain money. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate his default (see, Matter of Ping Lee v City of New York, 233 AD2d 510). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.