O'Donnell v Frangakis

2010 NY Slip Op 06622 [76 AD3d 999]

September 21, 2010

Appellate Division, Second Department

As corrected through Wednesday, October 27, 2010

Patricia O'Donnell, Appellant, v Constantina Frangakis,Respondent.

—[*1]Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Gregory M. LaSpinaand Stephen J. Smith of counsel), for appellant.

Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of counsel), forrespondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Siegal, J.), dated October 20, 2009, which granted thedefendant's motion to vacate an order of the same court dated May 14, 2009, granting theplaintiff's unopposed motion for leave to enter a judgment against her upon her failure to appearor answer and setting the matter down for an inquest on the issue of damages.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and the defendant's motion to vacate the order dated May 14, 2009, is denied.

A defendant seeking to vacate an order or judgment entered upon his or her default inappearing and answering the complaint "must demonstrate a reasonable excuse for [his or her]delay in appearing and answering the complaint and a potentially meritorious defense to theaction" (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986];see CPLR 5015 [a] [1]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Li Gang Ma v Hong Guang Hu, 54AD3d 312 [2008]; Verde Elec.Corp. v Federal Ins. Co., 50 AD3d 672 [2008]; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522 [2006]).The defendant's excuses that her insurer denied and disclaimed coverage and that she could notinitially afford an attorney were insufficient to excuse her lengthy delay in appearing (see Matter of Nieto, 70 AD3d 831[2010]; Toland v Young, 60 AD3d754 [2009]; Robinson v 1068Flatbush Realty, Inc., 10 AD3d 716, 717 [2004]; Rottenberg v Lerner, 232AD2d 395 [1996]). In view of the lack of a reasonable excuse, it is unnecessary to considerwhether the defendant sufficiently demonstrated the existence of a potentially meritoriousdefense (see Toland v Young, 60AD3d 754 [2009]; Levi v Levi,46 AD3d 519, 520 [2007]; Segoviav Delcon Constr. Corp., 43 AD3d 1143, 1144 [2007]). Accordingly, the defendant'smotion should have been denied. Skelos, J.P., Santucci, Angiolillo and Hall, JJ., concur.