| Bethune v Prioleau |
| 2011 NY Slip Op 01780 [82 AD3d 810] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Leon Bethune, Appellant, v Lorna A. Prioleau,Respondent. |
—[*1] Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated December 14, 2009, which granted thedefendant's motion to vacate a prior order of the same court dated September 29, 2008, grantinghis unopposed motion for leave to enter a judgment against the defendant upon her default inappearing or answering and, in effect, to compel him to accept the answer, and vacated the noteof issue and voided the inquest on the issue of damages.
Ordered that the order dated December 14, 2009, is reversed, on the law, with costs, thedefendant's motion to vacate the order dated September 29, 2008, and, in effect, to compel theplaintiff to accept the answer is denied, and the note of issue and the inquest on the issue ofdamages are reinstated.
To vacate the order entered upon her default in opposing the motion for leave to enter adefault judgment, the defendant was required to demonstrate, inter alia, a reasonable excuse forher default in opposing the motion and a potentially meritorious opposition to the motion (see NY SMS Waterproofing, Inc. vCongregation Machne Chaim, Inc., 81 AD3d 617 [2011]; Assael v 15 Broad St., LLC, 71 AD3d802, 803 [2010]; Abdul vHirschfield, 71 AD3d 707 [2010]). The defendant failed to proffer any excuse for herdefault in opposing the plaintiff's motion for leave to enter a default judgment, or for her lengthydelay in moving to vacate the order entered upon her default (see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc.,81 AD3d 617 [2011]; Assael v 15 Broad St., LLC, 71 AD3d at 803; Canty v Gregory, 37 AD3d 508[2007]; Bekker v Fleischman, 35AD3d 334 [2006]; Gainey vAnorzej, 25 AD3d 650, 651 [2006]). In addition, the defendant failed to demonstrate apotentially meritorious opposition to the plaintiff's motion (see NY SMS Waterproofing, Inc.v Congregation Machne Chaim, Inc., 81 AD3d 617 [2011]). Accordingly, the Supreme Courterred in granting the defendant's motion, vacating the note of issue, and voiding the inquest onthe issue of damages. Dillon, J.P., Leventhal, Belen and Cohen, JJ., concur.