| Zaidman v Zaidman |
| 2011 NY Slip Op 09634 [90 AD3d 1035] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Grace Zaidman, Respondent, v Sabina Zaidman, Appellant,et al., Defendant. |
—[*1] Baron Associates, P.C., Brooklyn, N.Y. (Daniel Davidovic of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Sabina Zaidman appealsfrom an order of the Supreme Court, Kings County (Solomon, J.), dated June 9, 2011, whichdenied her motion pursuant to CPLR 5015 (a) (1) to vacate an order of the same court (R. Miller,J.), dated June 9, 2008, granting the plaintiff's unopposed motion pursuant to CPLR 3215 (e) forleave to enter judgment against her upon her default in appearing or answering the complaint,and for leave to serve a late answer.
Ordered that the order dated June 9, 2011, is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries in or aboutSeptember 2007. The defendant Sabina Zaidman (hereinafter the defendant) failed to answer thecomplaint, and, by notice of motion dated April 25, 2008, the plaintiff moved pursuant to CPLR3215 (e) for leave to enter a default judgment against her (hereinafter the 2008 motion). TheSupreme Court granted that unopposed motion in an order dated June 9, 2008 (hereinafter the2008 order). Almost three years later, in 2011, the defendant moved pursuant to CPLR 5015 (a)(1) to vacate her default and for leave to serve a late answer to the complaint. The defendantasserted that the 2008 order was a nullity because the plaintiff had failed to comply with CPLR3215 (f) in making the 2008 motion. That section requires a party seeking a default judgment tofile, among other things, "proof of the facts constituting the claim . . . by affidavitmade by the party" (CPLR 3215 [f]). The Supreme Court denied the defendant's motion, interalia, to vacate her default. It reasoned that the defendant had not offered a reasonable excuse forfailing to appear in the action or to oppose the motion for leave to enter a default judgment. TheSupreme Court also concluded that the defendant's own submissions in support of her motion tovacate her default established the merit of the plaintiff's cause of action.
An order granting a motion for leave to enter a default judgment is not a "nullity" merelybecause the movant has not complied with the requirements of CPLR 3215 (f) regarding proof ofthe facts of the claim (see Citimortgage,Inc. v Phillips, 82 AD3d 1032, 1033 [2011]; Midfirst Bank v [*2]Al-Rahman, 81AD3d 797, 797-798 [2011]; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]; Araujo v Aviles, 33 AD3d 830[2006]; Bass v Wexler, 277 AD2d 266, 267 [2000]; Freccia v Carullo, 93 AD2d281, 288-289 [1983]; cf. State of NewYork v Williams, 44 AD3d 1149 [2007]; Natradeze v Rubin, 33 AD3d 535 [2006]; Westcott vNiagara-Orient Agency, 122 AD2d 557 [1986]). Rather, a party moving to vacate a defaultand extending the time to answer pursuant to CPLR 5015 (a) (1) must establish a reasonableexcuse for the default and demonstrate the existence of a potentially meritorious defense (see Bank of Am. v Faracco, 89 AD3d879 [2011]; Stephan B. Gleich &Assoc. v Gritsipis, 87 AD3d 216, 221 [2011]; Midfirst Bank v Al-Rahman, 81AD3d at 797-798; Coulter v Town ofHighlands, 26 AD3d 456, 457 [2006]). Regardless of the merit of the defendant'scontention that the plaintiff failed to comply with the factual proof requirement of CPLR 3215(f), the defendant established neither a reasonable excuse for her default nor the existence of apotentially meritorious defense. Consequently, the Supreme Court's denial of her motion tovacate her default and extend her time to answer the complaint was not an improvident exerciseof discretion (see Lane v Smith, 84AD3d 746, 747-748 [2011]; Citimortgage, Inc. v Brown, 83 AD3d 644, 645 [2011]). Mastro,A.P.J., Balkin, Chambers and Sgroi, JJ., concur.