Majority
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated April 8, 2005, which granted the defendant’s motion to vacate a prior order of the same court dated November 12, 2004, granting, without opposition, his motion for leave to enter judgment against the defendant upon the defendant’s failure to appear and answer the complaint and setting the matter down for an inquest on the issue of damages, and to compel him to accept an untimely answer.
Ordered that the order dated April 8, 2005, is reversed, on the facts and in the exercise of discretion, with costs, the defendant’s motion to vacate the order dated November 12, 2004, and to compel him to accept an untimely answer is denied, and the order dated November 12, 2004, is reinstated.
A defendant seeking to vacate an order entered upon his or her default must demonstrate both a reasonable excuse for the delay in appearing and answering the complaint and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 , 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649 , 650 [1983]). The defendant failed to submit any excuse for his failure to respond to the plaintiffs motion for leave to enter a default judgment, and failed to give a reasonable excuse for the lengthy delay in moving to vacate the order granting the plaintiffs motion. Under the circumstances, the defendant’s pattern of willful neglect and default should not have been excused (see Edwards v Feliz,
Cases cited
- Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co. 67 NY2d 138 at 141 p. 334
- Gray v. B. R. Trucking Co. 59 NY2d 649 at 650 p. 334
- Edwards v. Feliz 28 AD3d 512 at 513 p. 335
- Gainey v. Anorzej 25 AD3d 650 at 651 p. 335
- Roussodimou v. Zafiriadis 238 AD2d 568 at 568 p. 335
- Pampalone v. Giant Building Maintenance, Inc. 17 AD3d 556 at 557 p. 335
- Juseinoski v. Board of Education 15 AD3d 353 at 356 p. 335