| Maida v Lessing's Rest. Servs., Inc. |
| 2011 NY Slip Op 00490 [80 AD3d 732] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Frances Maida, Respondent, v Lessing's RestaurantServices, Inc., et al., Appellants. |
—[*1] Laurence A. Silverman, Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Mayer, J.), dated May 21, 2010, which denied the motion ofthe defendant Lessing's Restaurant Services, Inc., to vacate a prior order of the same court datedNovember 24, 2008, granting the plaintiff's unopposed motion for leave to enter a judgmentagainst that defendant upon its failure to appear or answer the complaint.
Ordered that the appeal by the defendant Lessing's, Inc., is dismissed; and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendant Lessing'sRestaurant Services, Inc.
To vacate the order entered upon its default in opposing the motion for leave to enter adefault judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant),was required to demonstrate, inter alia, a reasonable excuse for its default in appearing oranswering the complaint and a potentially meritorious defense to the action (see CPLR5015 [a] [1]; Abdul v Hirschfield,71 AD3d 707 [2010]; Bekker vFleischman, 35 AD3d 334 [2006]; Epps v LaSalle Bus, 271 AD2d 400 [2000]).In support of its motion, which was not made until nine months after the order granting theplaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonableexcuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d631, 632 [2010]; Kramer v OilServs., Inc., 65 AD3d 523, 524 [2009]; Leifer v Pilgreen Corp., 62 AD3d 759, 760 [2009]; Martinez v D'Alessandro Custom Bldrs. &Demolition, Inc., 52 AD3d 786, 787 [2008]; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144 [2007]).Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated theexistence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr.,Ltd., 15 AD3d 431 [2005]). In addition, contrary [*2]tothe appellant's contention, the plaintiff's submissions in support of her motion for leave to enter adefault judgment were sufficient. The verified complaint and the plaintiff's affidavit set forthsufficient facts to enable the Supreme Court to determine that the plaintiff alleged a viable causeof action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Neuman v Zurich N. Am., 36 AD3d601, 602 [2007]). Accordingly, the Supreme Court providently exercised its discretion indenying the appellant's motion to vacate the order dated November 24, 2008.
The appeal by the defendant Lessing's Inc., must be dismissed as that defendant is notaggrieved by the order appealed from (see CPLR 5511), and, in any event, the appeal hasbeen abandoned (see 22 NYCRR 670.8 [e]). Skelos, J.P., Covello, Eng, Chambers andSgroi, JJ., concur.