Ayiku v Viteritti

2008 NY Slip Op 06944 [54 AD3d 789]

September 16, 2008

Appellate Division, Second Department

As corrected through Wednesday, October 29, 2008

Samuel Ayiku, Appellant, v John Viteritti et al.,Respondents.

—[*1]Parker Waichman Alonso LLP, Great Neck, N.Y. (Ronni Robbins Kravatz of counsel),for appellant.

Stewart H. Friedman, Lake Success, N.Y. (Michael A. Dantuono of counsel), forrespondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Murphy, J.), entered October 5, 2007, which granted thedefendants' motion to vacate an order of the same court entered May 21, 2007 granting theplaintiff's motion for leave to enter a judgment against them upon their failure to appear oranswer.

Ordered that the order entered October 5, 2007 is reversed, on the facts and in the exercise ofdiscretion, with costs, the defendants' motion to vacate the order entered May 21, 2007 is denied,and the order entered May 21, 2007 is reinstated.

The defendants, who sought to have their default in appearing or timely answering thecomplaint vacated, were required to demonstrate both a reasonable excuse for their default andthe existence of a meritorious defense (see CPLR 5015 [a] [1]; Levi v Levi, 46 AD3d 519 [2007];Segovia v Delcon Constr. Corp., 43AD3d 1143 [2007]). They were required to submit supporting facts in evidentiary formsufficient to justify their default (seeWhite v Incorporated Vil. of Hempstead, 41 AD3d 709 [2007]; Kumar v Yonkers Contr. Co., Inc., 14AD3d 493 [2005]; Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553[2001]).

The defendants failed to demonstrate, by competent proof, the existence of a reasonableexcuse for their default. Accordingly, the Supreme Court improvidently exercised its discretionin granting the defendants' motion to vacate their default (see Lemberger v Congregation Yetev Lev [*2]D'Satmar, Inc., 33 AD3d 671 [2006]; Krieger v Cohan, 18 AD3d 823,824 [2005]; New York Hosp. Med. Ctr.of Queens v Clarendon Natl. Ins. Co., 13 AD3d 596 [2004]; Abrams v City of New York, 13 AD3d566 [2004]). Skelos, J.P., Ritter, Florio and Carni, JJ., concur.