| Ramirez v Islandia Exec. Plaza, LLC |
| 2012 NY Slip Op 01230 [92 AD3d 747] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Rafael Ramirez, Appellant, v Islandia Executive Plaza,LLC, Respondent, et al., Defendant. |
—[*1] Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y. (Margaret Herrmann and Roger B.Lawrence of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Spinner, J.), entered December 17, 2010, which granted themotion of the defendant Islandia Executive Plaza, LLC, (a) to vacate an order of the same courtentered January 21, 2010, granting his motion for leave to enter a judgment against thatdefendant upon its default in appearing or answering the complaint, and (b) for leave to serve andfile an answer to the complaint, and denied his cross motion for an immediate assessment ofdamages against the defendant Islandia Executive Plaza, LLC.
Ordered that the order entered December 17, 2010, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof granting the motion of the defendantIslandia Executive Plaza, LLC, and substituting therefor a provision denying the motion; as somodified, the order entered December 17, 2010, is affirmed, with costs to the plaintiff.
On July 13, 2009, the plaintiff commenced this action against the defendants IslandiaExecutive Plaza, LLC (hereinafter Islandia), and Citibank, N.A., to recover damages for personalinjuries he allegedly sustained. An order directing the entry of a default judgment was enteredagainst Islandia on January 21, 2010, based upon its default in appearing or answering thecomplaint, and the Supreme Court directed that the assessment of damages against Islandia wasto be conducted at the time of or following the trial or other disposition of the causes of actionagainst the nondefaulting defendant, Citibank, N.A.
Approximately seven months after the action was commenced, Islandia moved to vacate theorder entered January 21, 2010, and for leave to serve and file an answer. The plaintiff opposedthe motion, and cross-moved for an immediate assessment of damages against Islandia. TheSupreme Court granted Islandia's motion and denied the plaintiff's cross motion. The plaintiffappeals, and we modify.
A defendant seeking to vacate a default must provide a reasonable excuse for the [*2]default and demonstrate a potentially meritorious defense to theaction (see CPLR 5015 [a] [1]; Castle v Avanti, Ltd., 86 AD3d 531 [2011]; Bethune v Prioleau, 82 AD3d 810[2011]; NY SMS Waterproofing, Inc. vCongregation Machne Chaim, Inc., 81 AD3d 617 [2011]; Maida v Lessing's Rest. Servs., Inc., 80AD3d 732 [2011]). Even if Islandia proffered a reasonable excuse for its default here, itfailed to demonstrate the existence of a potentially meritorious defense to the action (see New Seven Colors Corp. v WhiteBubble Laundromat, Inc., 89 AD3d 701 [2011]; Codoner v Bobby's Bus Co., Inc., 85 AD3d 843, 844 [2011]; Matter of Miguel M.-R.B., 36 AD3d613, 614 [2007]). Accordingly, the Supreme Court improvidently exercised its discretion ingranting Islandia's motion to vacate the order entered January 21, 2010, and for leave to serveand file an answer.
However, the Supreme Court properly denied the plaintiff's cross motion. When dealing withmultiple defendants, CPLR 3215 (d), upon application of a party, imbues the Supreme Courtwith the discretion to make an order permitting further proceedings against a defaulting party tooccur when the matter is tried, or after there has been a disposition against the nondefaultingparties, without regard to the one-year time period otherwise imposed by CPLR 3215 (c) fortaking proceedings for the entry of a judgment after a party's default. Here, the Supreme Courtprovidently directed that the assessment of damages as against Islandia was to take place at thetime of or after trial or other disposition of the causes of action against the nondefaulting party,Citibank, N.A.
The parties' remaining contentions either are without merit, are raised for the first time onappeal, or need not be reached in light of our determination. Mastro, A.P.J., Hall, Sgroi andCohen, JJ., concur.