Nasca v. Gertel

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 19, 2002, which denied their motion for leave to enter a default judgment against the defendant Lucine Anzelone, also known as Lucine Goldman, upon her failure to timely serve an answer to the complaint, and deemed the answer served by that defendant timely.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The Supreme Court erred in denying the plaintiffs motion for leave to enter a default judgment against the defendant Lucine Anzelone, also known as Lucine Goldman (hereinafter Anzelone), since Anzelone failed to provide a reasonable excuse for her default and to demonstrate a meritorious defense to the action (see Ennis v Lema, 305 AD2d 632 [2003]). Further, contrary to Anzelone’s contention, the plaintiffs did not waive the late service and the default since the answer was served after the plaintiffs moved for leave to enter a default judgment (see Brenner v Cross County Shopping Ctr., 308 AD2d 469 [2003]; cf. Ligotti v Wilson, 287 AD2d 550 [2001]).

We have not considered those portions of the brief submitted by Anzelone which are dehors the record in reaching our determination (see Carhuff v Barnett’s Bake Shop, 54 AD2d 969 [1976]).

The parties’ remaining contentions have been rendered academic in light of our determination. Prudenti, P.J., H. Miller, Schmidt and Cozier, JJ., concur.