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Perfect Care, Inc. v. Ultracare Supplies

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


March 9, 2010

PERFECT CARE, INC., RESPONDENT,
v.
ULTRACARE SUPPLIES, INC., ET AL., APPELLANTS.

In an action, inter alia, to set aside a transfer of assets as fraudulent, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered March 17, 2009, which denied their motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court entered December 9, 2008, granting the plaintiff's unopposed motion for leave to enter a default judgment against them in the principal sum of $87,776.09.

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., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO and PLUMMER E. LOTT, JJ.

(Index No. 17846/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

To obtain vacatur of an order entered upon their default in answering the complaint, the defendants were required to demonstrate a reasonable excuse for their failure to serve an answer and a meritorious defense to the action (see CPLR 5015[a][1]; Forward Door of N.Y. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Fekete v Camp Skwere, 16 AD3d 544, 545). 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; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home-Owners' Assn., 207 AD2d 526, 527). We agree with the Supreme Court's determination that the defendants failed to demonstrate a reasonable excuse for their default.

FISHER, J.P., SANTUCCI, ANGIOLILLO and LOTT, JJ., concur.

20100309

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