Town of East Hampton v. Rodriguez

222 A.D.2d 429, 635 N.Y.S.2d 520, 1995 N.Y. App. Div. LEXIS 12577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1995
• Status: Published

Opinion

—In an action to permanently enjoin the defendants from providing entertainment in violation of local zoning laws, the defendants appeal from (1) a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered March 1, 1994, which, inter alia, permanently enjoined the defendants from providing entertainment in violation of local zoning laws, and (2) an order of the same court, dated April 12,1994, which denied their motion for reargument of the plaintiff’s motion for leave to enter a default judgment, which was granted by an order of the same court, dated December 30, 1993. The plaintiff’s notice of appeal from an order of the same court, entered October 7, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [b]).

Ordered that the appeal from the order dated April 12, 1994, is dismissed, as no appeal lies from an order denying reargument (see, Robinson v Laurent, 205 AD2d 517); and it is further,

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

Ordered that the plaintiff is awarded one bill of costs.

In order to vacate a default judgment, a defendant must demonstrate that there was an excusable delay and a meritorious defense (see, CPLR 5015 [a] [1]; Kyriacopoulos v Mendon Leasing Corp., 216 AD2d 532; Matter of Hostomsky v Electronic Data Sys. Corp., 214 AD2d 733; Korea Exch. Bank v Attilio, 186 AD2d 634). The defendants failed to sustain their burden of demonstrating a meritorious defense. Accordingly, the default judgment entered against them will not be vacated (see, Palostrada v Modugno, 168 AD2d 673). Mangano, P. J., Balletta, Pizzuto and Santucci, JJ., concur.