Williams v. Cook

Appellate Division of the Supreme Court of New York

Williams v. Cook

17 A.D.3d 354, 791 N.Y.S.2d 855, 2005 N.Y. App. Div. LEXIS 3544

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 2005

StatusPublished

Cited by1 cases

This text of 17 A.D.3d 354 (Williams v. Cook) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. Cook, 17 A.D.3d 354, 791 N.Y.S.2d 855, 2005 N.Y. App. Div. LEXIS 3544 (N.Y. Ct. App. 2005).

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Opinion

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered February 27, 2004, which granted the defendant’s motion to vacate an order of the same court (Colabella, J.), entered December 16, 2002, granting his motion for leave to enter judgment upon the defendant’s default in appearing or answering and directing an inquest on the issue of [355]*355damages, and to vacate a judgment of the same court (Friedman, J.), entered June 24, 2003, which, after an inquest on damages, was in his favor and against the defendant in the principal sum of $35,045.00.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, and the order entered December 16, 2002, and the judgment are reinstated.

A party seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]). Here, the defendant failed to offer a reasonable excuse for his default. We note that the defendant has abandoned his claim of improper service on appeal. Moreover, the defendant failed to establish the existence of a meritorious defense. Accordingly, the motion to vacate the default should have been denied. Cozier, J.P., S. Miller, Santucci and Fisher, JJ., concur.

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In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered February 27, 2004, which granted the defendant’s motion to vacate an order of the same court (Colabella, J.), entered December 16, 2002, granting his motion for leave to enter judgment upon the defendant’s default in appearing or answering and directing an inquest on the issue of [355]*355damages, and to vacate a judgment of the same court (Friedman, J.), entered June 24, 2003, which, after an inquest on damages, was in his favor and against the defendant in the principal sum of $35,045.00.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, and the order entered December 16, 2002, and the judgment are reinstated.

A party seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]). Here, the defendant failed to offer a reasonable excuse for his default. We note that the defendant has abandoned his claim of improper service on appeal. Moreover, the defendant failed to establish the existence of a meritorious defense. Accordingly, the motion to vacate the default should have been denied. Cozier, J.P., S. Miller, Santucci and Fisher, JJ., concur.

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Bluebook (online)

17 A.D.3d 354, 791 N.Y.S.2d 855, 2005 N.Y. App. Div. LEXIS 3544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-cook-nyappdiv-2005.

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