| Borrie v County of Suffolk |
| 2011 NY Slip Op 07391 [88 AD3d 842] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Roderick Borrie, Appellant, v County of Suffolk,Respondent, and Town of Brookhaven, Appellant, et al., Defendant. |
—[*1] Bartlett McDonough & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., andMegan C. Wagner of counsel), for defendant-appellant. Christine Malafi, County Attorney, Hauppauge, N.Y. (Diana T. Bishop of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals, and thedefendant Town of Brookhaven separately appeals, as limited by their respective briefs, from somuch of an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 3, 2010, asgranted that branch of the motion of the defendant County of Suffolk which was for leave torenew its opposition to the plaintiff's cross motion for leave to enter a judgment against thatdefendant upon its default in answering or appearing, which had been granted in an order of thesame court dated March 12, 2010, and upon renewal, in effect, vacated so much of the orderdated March 12, 2010, as granted the plaintiff's cross motion and thereupon denied the plaintiff'scross motion.
Ordered that the appeal by the defendant Town of Brookhaven is dismissed, without costs ordisbursements, as the defendant Town of Brookhaven is not aggrieved by the portion of the orderappealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the plaintiff, on the law, thatbranch of the motion of the defendant County of Suffolk which was for leave to renew itsopposition to the plaintiff's cross motion for leave to enter a judgment against it upon its defaultin answering or appearing is denied, and so much of the order dated March 12, 2010, as grantedthe plaintiff's cross motion is reinstated; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendant County ofSuffolk.
In opposition to the plaintiff's cross motion for leave to enter a judgment against the [*2]defendant County of Suffolk upon its default in answering orappearing, the County was required to demonstrate a reasonable excuse for its default and apotentially meritorious defense to the action (see CPLR 5015 [a] [1]; Kouzios v Dery, 57 AD3d 949[2008]; Giovanelli v Rivera, 23AD3d 616 [2005]; Mjahdi vMaguire, 21 AD3d 1067, 1068 [2005]; see also Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d649, 650 [1983]). The County failed to proffer a reasonable excuse for its default in answering orfor its four-month delay in making an untimely motion pursuant to CPLR 3211 (a) (7)(see CPLR 320 [a]; 3211 [e]; Bennett v Hucke, 64 AD3d 529, 530 [2009]). On its motion forleave to renew, the County did not offer a reasonable justification for its failure to present thealleged new facts on the prior cross motion (see CPLR 2221 [d]). Furthermore, the newfacts presented by the County failed to demonstrate a reasonable excuse for the default inanswering the complaint or appearing in the action (see White v Daimler Chrysler Corp., 44 AD3d 651, 652 [2007];Everything Yogurt v Toscano, 232 AD2d 604, 606 [1996]; P & K Marble vPearce, 168 AD2d 439 [1990]).
Accordingly, that branch of the County's motion which was for leave to renew its oppositionto the plaintiff's cross motion for leave to enter a default judgment against it should have beendenied. Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.