Opinion
2002-03804
Submitted February 26, 2003.
March 24, 2003.
In an action, inter alia, to recover damages for assault, the defendant Brendan Wright appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated March 22, 2002, as granted that branch of the plaintiff's cross motion which was for leave to enter a judgment against him on the issue of liability upon his default in answering, and declined to compel the plaintiff to accept his late answer.
Goldstein, Tanenbaum D'Errico, LLP, Carle Place, N.Y. (Christopher R. Invidiata, Steven F. Goldstein, and Samuel J. DiMeglio, Jr., of counsel), for appellant.
Benjamin Vinar, Garden City, N.Y. (Rubine Rubine, PLLC, Mineola, N.Y. [Robert S. Rubine] of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015[a][1]; Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650; Cilindrello v. Rayabin, 297 A.D.2d 699; cf. Fidelity Deposit Co. of Md. v. Arthur Andersen Co., 60 N.Y.2d 693, 695). The appellant failed to demonstrate either a reasonable excuse for his default or a meritorious defense (see State Farm Fire and Cas. Co. v. Bongiorno, 237 A.D.2d 31, 35; Moore v. Claudio, 224 A.D.2d 502, 503; Passalacqua v. Banat, 103 A.D.2d 769). Thus, the Supreme Court providently exercised its discretion in denying the relief requested by the appellant.
SANTUCCI, J.P., KRAUSMAN, McGINITY, SCHMIDT and CRANE, JJ., concur.