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Diaz v. Ralph

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 20, 2009

MARCOS DIAZ, ET AL., RESPONDENTS,
v.
STEPHEN RALPH, ETC., ET AL., DEFENDANTS, HEAD & NECK SURGICAL GROUP, LLC, APPELLANT.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Head & Neck Surgical Group, LLC, appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 15, 2008, which denied its motion to vacate so much of a prior order of the same court (Baisley, Jr., J.), dated February 19, 2008, as granted the plaintiff's unopposed motion for leave to enter a default judgment upon its failure to appear or answer the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, RANDALL T. ENG and SHERI S. ROMAN, JJ.

(Index No. 962/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

To prevail on a motion to vacate its default, a defendant is required to demonstrate both a reasonable excuse therefor and a meritorious defense (see CPLR 5015[a][1]; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429; Czarnik v Urban, 10 AD3d 627).

The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp, 10 AD3d 393, 394). Here, the appellant presented neither an acceptable excuse for its failure to timely serve an answer nor a meritorious defense. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the appellant's motion to vacate its default.

FISHER, J.P., FLORIO, ANGIOLILLO, ENG and ROMAN, JJ., concur.

20091020

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