Diaz v Ralph

Diaz v Ralph 2009 NY Slip Op 07579 [66 AD3d 819] October 20, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Marcos Diaz et al., Respondents,
v
Stephen Ralph et al., Defendants, and Head & Neck Surgical Group, LLC, Appellant.

—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E Lerner and Patrick J. Lawless of counsel), for appellant.

Duffy & Duffy, Uniondale, N.Y. (James N. LiCalzi of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Head & Neck Surgical Group, LLC, appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 15, 2008, which denied its motion to vacate so much of a prior order of the same court (Baisley, Jr., J.), dated February 19, 2008, as granted the plaintiff's unopposed motion for leave to enter a default judgment upon its failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

To prevail on a motion to vacate its default, a defendant is required to demonstrate both a reasonable excuse therefor and a meritorious defense (see CPLR 5015 [a] [1]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d 429 [2005]; Czarnik v Urban, 10 AD3d 627 [2004]).

The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]). Here, the appellant presented neither an acceptable excuse for its failure to timely serve an answer nor a meritorious defense. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the appellant's motion to vacate its default. Fisher, J.P., Florio, Angiolillo, Eng and Roman, JJ., concur.