New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
February 11, 2013
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered July 28, 2011.
Ankhbara v Stephens
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 11, 2013
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is affirmed, without costs.
A defendant seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ; Hodges v Sidial, 48 AD3d 633, 634 ; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 ).
Here, defendant failed to proffer a reasonable excuse for her default in appearing at a scheduled court date on May 6, 2011. Defendant's excuse, that her attorney was given a court date which was changed without notice to a later date pursuant to Civil Court scheduling policies, lacks merit. Defendant would have learned that the appearance was rescheduled had she and her attorney appeared on May 4, 2011, the originally scheduled court date. In view of the lack of a reasonable excuse for the default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 ). As the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013
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