Opinion
CA 05-00014.
November 10, 2005.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered October 20, 2004. The order denied defendant's motion to vacate a default judgment.
ASANDROV LAW OFFICES, ROCHESTER (JAMES D. DIMASSIMO OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD T. COOK, P.C., BUFFALO (FREDERICK J. GAWRONSKI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Smith, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Upon defendant's default, Supreme Court granted plaintiff's motion for summary judgment in lieu of complaint ( see CPLR 3213), pursuant to which plaintiff sought the amount due under a promissory note and guaranty executed by defendant. Although defendant properly moved to vacate the judgment granting plaintiff's motion rather than taking an appeal from it ( see CPLR 5015 [a] [1]; Ross Bicycles v. Citibank, 134 AD2d 181, 182; see also Marquise Collection v. M.A.S. Textiles Corp., 239 AD2d 470), we nevertheless conclude that he failed to establish his entitlement to that relief. "A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense" ( Matter of Macias v. Motor Veh. Acc. Indem. Corp., 10 AD3d 396, 397). Defendant's own submissions establish that the default was intentional and thus not excusable ( see Eretz Funding v. Shalosh Assoc., 266 AD2d 184, 185; P K Marble v. Pearce, 168 AD2d 439), and defendant failed to establish the existence of a meritorious defense ( see Gittleson v. Dempster, 148 AD2d 578, 579, lv denied 74 NY2d 603).