| Pimento v Rojas |
| 2012 NY Slip Op 02658 [94 AD3d 844] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Sean A. Pimento et al., Appellants, v Stephanie Rojas,Respondent. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (McDonald, J.), entered September 27, 2011, which grantedthe defendant's motion to vacate an order of the same court dated April 25, 2011, granting theplaintiffs' unopposed motion for leave to enter a default judgment upon her failure to appear oranswer the complaint, and directing an inquest on damages.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default must demonstrate both a reasonable excuse for thedefault and a meritorious defense (seeAssael v 15 Broad St., LLC, 71 AD3d 802 [2010]; Abdul v Hirschfield, 71 AD3d 707 [2010]; Canty v Gregory, 37 AD3d 508[2007]). The determination of what is a reasonable excuse is generally left to the sound discretionof the Supreme Court (see Hageman vHome Depot U.S.A., Inc., 25 AD3d 760 [2006]; Ruppell v Hair Plus Beauty,288 AD2d 205 [2001]). Here, the Supreme Court did not improvidently exercise its discretion infinding that the defendant had failed to present a reasonable excuse sufficient to warrant vacatingher default under CPLR 5015 (a) (1).
However, the Supreme Court also did not improvidently exercise its discretion in vacatingthe defendant's default pursuant to CPLR 317. That statutory provision permits a defendant whohas been "served with a summons other than by personal delivery" to seek relief from a defaultupon a showing that it did not receive notice of the summons in time to defend and has ameritorious defense (CPLR 317; see Taieb v Hilton Hotels Corp., 60 NY2d 725, 728[1983]; Franklin v 172 AububonCorp., 32 AD3d 454, 455 [2006]; Brockington v Brookfield Dev. Corp., 308AD2d 498 [2003]; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405[2002]). The affidavits submitted by the defendant herein set forth sufficient facts to warrantrelief from her default under CPLR 317. Rivera, J.P., Eng, Chambers, Sgroi and Miller, JJ.,concur.