Capitol Building Corp. v. Petsco & Son

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated November 8, 1999, which denied its motion for summary judgment on the complaint against the defendant Amwest Surety Insurance Company, and, in effect, granted the defendants’ cross motion to vacate a judgment of the same court, dated June 16, 1999, entered against the defendant Petsco & Son, a/k/a Prospect Street Construction Corp., d/b/a Petsco & Son, and directed that defendant to serve and file a verified answer.

Ordered that the order is affirmed, with costs.

To vacate a default in answering, a defendant must show a meritorious defense and a justifiable excuse for the default (see, CPLR 5015 [a] [1]; Miles v Blue Label Trucking, 232 AD2d 382). The defendant Petsco & Son, a/k/a Prospect Street Construction Corp., d/b/a Petsco & Son, sufficiently established these elements to justify vacating the judgment dated June 16, 1999. In addition, the Supreme Court providently exercised its discretion in granting that defendant an extension of time to answer (see, CPLR 3012 [d]). Furthermore, there are questions of fact which preclude summary judgment against the defendant Amwest Surety Insurance Company.

The plaintiff’s remaining contentions are without merit. Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.