| Hill v Stone |
| 2014 NY Slip Op 00090 [113 AD3d 595] |
| January 8, 2014 |
| Appellate Division, Second Department |
| Winston Hill, Respondent, v Barbara Stone,Appellant. |
—[*1] Seener & Seener, New York, N.Y. (Steven Seener of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Spodek, J.), dated April 3, 2012, whichdenied her motion to vacate an order of the same court dated November 1, 2010, grantingthe plaintiff's motion for leave to enter a judgment on the issue of liability, upon herfailure to appear or answer.
Ordered that the order dated April 3, 2012, is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering must provide areasonable excuse for the default and demonstrate a potentially meritorious defense to theaction (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr.Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649,650 [1983]; Deutsche BankNatl. Trust Co. v Gutierrez, 102 AD3d 825 [2013]; Arias v First Presbyt. Church inJamaica, 100 AD3d 940, 941 [2012]). The defendant's unsubstantiatedassertions that she engaged in a telephone conversation with the plaintiff's attorney in aneffort to avert litigation and that she could not initially afford an attorney did notconstitute a reasonable excuse for her failure to appear or answer (see U.S. Bank N.A. vSlavinski, 78 AD3d 1167 [2010]; O'Donnell v Frangakis, 76 AD3d 999, 1000 [2010]; Matter of Nieto, 70 AD3d831, 832 [2010]; Fattarusso v Levco Am. Improvement Corp., 144 AD2d626, 627 [1988]). Since the defendant failed to demonstrate a reasonable excuse for herdefault, the Supreme Court properly denied her motion to vacate the order datedNovember 1, 2010, which granted the plaintiff leave to enter a judgment on the issue ofliability. Contrary to the defendant's contention, the plaintiff's alleged failure to file averification or affidavit of the facts constituting the claim in support of his motion forleave to enter a default judgment pursuant to CPLR 3215 (f) does not relieve thedefendant of her burden under CPLR 5015 (a) (1) or otherwise constitute a basis forvacatur of the November 1, 2010, order (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21NY3d 200, 203-204 [2013]; Zaidman v Zaidman, 90 AD3d 1035, 1036 [2011]). Rivera,J.P., Hall, Roman and Cohen, JJ., concur.