Gillingham v Robinson

Gillingham v Robinson 2007 NY Slip Op 09327 [45 AD3d 467] November 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Robert Gillingham, Respondent,
v
Gary Robinson, Appellant.

—[*1] The Rice Law Firm, PLLC, New York City (Melaine C. Alphonso of counsel), for appellant.

Nelson M. Stern, New York City, for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered February 14, 2007, which granted defendant's motion to reargue a prior order, same court and Justice, entered January 8, 2007, denying defendant's motion to vacate the default judgment and, upon reargument, adhered to the prior determination, unanimously affirmed, without costs. Appeal from order entered January 8, 2007, unanimously dismissed, without costs, as superseded by the appeal from the order entered February 14, 2007. Appeal from order, same court (Harold Beeler, J.), entered October 19, 2004, which granted plaintiff's motion for a default judgment, unanimously dismissed, without costs, as taken from a nonappealable order.

Initially, we find that defendant's letter to the motion court seeking clarification of its January 8, 2007 order was essentially a motion to reargue that was granted (CPLR 2221 [d] [2]).

Plaintiff's motion for a default judgment was granted upon his submission of the proof required by CPLR 3215 (f), and the court's reasonable determination that plaintiff had demonstrated sufficient cause for the failure to take proceedings for entry of the default judgment within one year after the default (CPLR 3215 [c]). Accordingly, defendant could only obtain vacatur of the default judgment upon a showing of a reasonable excuse for the default (CPLR 5015 [a] [1]) and a meritorious defense. Since defendant failed to provide a reasonable excuse for his default after being served with the summons and complaint in April 2002, the motion to vacate was properly denied (see Brown v Suggs, 38 AD3d 329, 330 [2007]). [*2]

We have considered defendant's remaining contentions and find them unavailing. Concur—Lippman, P.J., Friedman, Sullivan, Gonzalez and Catterson, JJ.