Opinion
2014-01-8
Winston HILL, respondent, v. Barbara STONE, appellant.
Frank Wharton, Brooklyn, N.Y., for appellant. Seener & Seener, New York, N.Y. (Steven Seener of counsel), for respondent.
Frank Wharton, Brooklyn, N.Y., for appellant. Seener & Seener, New York, N.Y. (Steven Seener of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 3, 2012, which denied her motion to vacate an order of the same court dated November 1, 2010, granting the plaintiff's motion for leave to enter a judgment on the issue of liability, upon her failure to appear or answer.
ORDERED that the order dated April 3, 2012, is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action ( seeCPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270; Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 958 N.Y.S.2d 472; Arias v. First Presbyt. Church in Jamaica, 100 A.D.3d 940, 941, 957 N.Y.S.2d 121). The defendant's unsubstantiated assertions that she engaged in a telephone conversation with the plaintiff's attorney in an effort to avert litigation and that she could not initially afford an attorney did not constitute a reasonable excuse for her failure to appear or answer ( see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 912 N.Y.S.2d 285; O'Donnell v. Frangakis, 76 A.D.3d 999, 1000, 908 N.Y.S.2d 589; Matter of Nieto, 70 A.D.3d 831, 832, 894 N.Y.S.2d 502; Fattarusso v. Levco Am. Improvement Corp., 144 A.D.2d 626, 627, 535 N.Y.S.2d 62). Since the defendant failed to demonstrate a reasonable excuse for her default, the Supreme Court properly denied her motion to vacate the order dated November 1, 2010, which granted the plaintiff leave to enter a judgment on the issue of liability. Contrary to the defendant's contention, the plaintiff's alleged failure to file a verification or affidavit of the facts constituting the claim in support of his motion for leave to enter a default judgment pursuant to CPLR 3215(f) does not relieve the defendant of her burden under CPLR 5015(a)(1) or otherwise constitute a basis for vacatur of the November 1, 2010, order ( see Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 203–204, 969 N.Y.S.2d 424, 991 N.E.2d 198; Zaidman v. Zaidman, 90 A.D.3d 1035, 1036, 935 N.Y.S.2d 147). RIVERA, J.P., HALL, ROMAN and COHEN, JJ., concur.