D'Agostino v. Franklin , 768 N.Y.S.2d 636 ( 2003 )

—In an action to recover damages for fraudulent misrepresentation, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), entered January 30, 2003, which denied his motion for leave to enter a judgment against the defendants upon their failure to appear or answer, and (2) an order of the same court dated June 17, 2003, which granted the defendants’ motion to vacate their default in appearing or answering.

Ordered that the orders are affirmed, with one bill of costs.

It is well established that a party seeking to vacate a default in answering or appearing must make a showing of a justifiable excuse for the default, and a meritorious defense (see Hazen v Bottiglieri, 286 AD2d 708 [2001]; Miles v Blue Label Trucking, 232 AD2d 382 [1996]). In this case, the defendants made a sufficient showing of both a justifiable excuse and a meritorious defense. In addition, there was no prejudice to the plaintiff as a result of the relatively short delay. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.