Cardona v. Spicer

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J), dated September 21, 2004, as granted the defendants’ motion to vacate a prior order of the same court dated May 25, 2004, granting their motion for leave to enter judgment against the defendants upon their default in appearing or answering, deemed the defendants’ answer served, and vacated the note of issue.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants’ motion is denied, and the order dated May 25, 2004, and the note of issue are reinstated.

A defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393, 394 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The defendants failed to demonstrate a reasonable excuse, inter alia, for the full period of the delay. Accordingly, the Supreme Court erred in granting the defendants’ motion to vacate their default, deeming their answer served, and vacating the note of issue. Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.