Opinion
No. 2010-00800.
March 8, 2011.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated December 14, 2009, which granted the defendant's motion to vacate a prior order of the same court dated September 29, 2008, granting his unopposed motion for leave to enter a judgment against the defendant upon her default in appearing or answering and, in effect, to compel him to accept the answer, and vacated the note of issue and voided the inquest on the issue of damages.
Jonathan Rice, Dobbs Ferry, N.Y., for appellant.
Votto Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.
Before:Dillon, J.P., Leventhal, Belen and Cohen, JJ.
Ordered that the order dated December 14, 2009, is reversed, on the law, with costs, the defendant's motion to vacate the order dated September 29, 2008, and, in effect, to compel the plaintiff to accept the answer is denied, and the note of issue and the inquest on the issue of damages are reinstated.
To vacate the order entered upon her default in opposing the motion for leave to enter a default judgment, the defendant was required to demonstrate, inter alia, a reasonable excuse for her default in opposing the motion and a potentially meritorious opposition to the motion ( see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc., 81 AD3d 617; Assael v 15 Broad St., LLC, 71 AD3d 802, 803; Abdul v Hirschfteld, 71 AD3d 707). The defendant failed to proffer any excuse for her default in opposing the plaintiffs motion for leave to enter a default judgment, or for her lengthy delay in moving to vacate the order entered upon her default ( see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc., 81 AD3d 617; Assael v 15 Broad St., LLC, 71 AD3d at 803; Canty v Gregory, 37 AD3d 508; Bekker v Fleischman, 35 AD3d 334; Gainey v Anorzej, 25 AD3d 650, 651). In addition, the defendant failed to demonstrate a potentially meritorious opposition to the plaintiffs motion ( see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc., 81 AD3d 617). Accordingly, the Supreme Court erred in granting the defendant's motion, vacating the note of issue, and voiding the inquest on the issue of damages.