Opinion
April 15, 1996
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order is affirmed, with costs.
When determining the plaintiff's application for leave to enter a default judgment against the defendant Herbert Agin and Agin's subsequent motion to reargue the plaintiff's application, the Supreme Court did not consider whether Agin's delay in answering was excusable and whether Agin had a meritorious defense to this action because, on both occasions, Agin failed to submit an affidavit of merit containing a justifiable excuse and a meritorious defense. We, therefore, find no merit to the plaintiff's contention that Agin should not have been allowed to relitigate those issues on a motion pursuant to CPLR 5015 (a)(1) to vacate his default ( see, Picinic v. Seatrain Lines, 117 A.D.2d 504; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6, at 467).
In light of our determination, we need not address the plaintiff's remaining contention. Sullivan, J.P., Copertino, Pizzuto and Florio, JJ., concur.