Opinion
2001-00828
Argued February 28, 2002.
April 15, 2002.
In an action, inter alia, to recover damages for alleged violations of constitutional rights, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lally, J.), dated December 12, 2000, which (1) denied their motions for leave to enter a judgment on the issue of liability upon the defendants' default in answering and for summary judgment on the issue of liability, and (2) granted the defendants' motion to vacate their default in answering and for summary judgment dismissing the complaint.
Stock Carr, Mineola, N.Y. (Victor A. Carr of counsel), for appellants.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel; Robert Vadnais on the brief), for respondents.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the order is modified by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
A defendant seeking to vacate a default in answering must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Hospital for Joint Diseases v. Allstate Ins. Co., 283 A.D.2d 609; Matter of Gambardella v. Ortov Light., 278 A.D.2d 494). Under the facts of this case, the Supreme Court providently exercised its discretion in permitting the defendants to vacate their default and interpose an answer (see Khanna v. Premium Food Sports Enter., 279 A.D.2d 508; Paradiso Assocs. v. Tamarin, 210 A.D.2d 386; Tugendhaft v. Country Estates Assoc., 111 A.D.2d 846).
The Supreme Court should have denied summary judgment to all parties, since there are material issues of fact to be resolved at trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
SANTUCCI, J.P., ALTMAN, FLORIO and FEUERSTEIN, JJ., concur.