Finnegan v Murphy

Finnegan v Murphy 2009 NY Slip Op 07796 [66 AD3d 957] October 27, 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

Vincent J. Finnegan, Appellant,
v
John H. Murphy et al., Defendants, and Circus Man of Suffolk, Inc., et al., Respondents.

—[*1] Mulholland, Minion & Roe, Williston Park, N.Y. (Christine M. Gibbons of counsel), for appellant.

McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), entered August 12, 2008, which granted the motion of the defendants Circus Man of Suffolk, Inc., and Circus Man Snacks, Inc., to vacate an order of the same court entered May 9, 2008, as amended by a stipulation dated July 31, 2008, granting the plaintiff's motion for leave to enter a default judgment against them upon their failure to answer the complaint, and to compel the plaintiff to accept their answer.

Ordered that the order entered August 12, 2008, is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in granting the respondents' motion to vacate their default in answering the complaint and to compel the plaintiff to accept their answer, as the defendants demonstrated both a reasonable excuse for their default and the existence of a potentially meritorious defense (see Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832 [2009]; Jaskiel v Tsatskis, 57 AD3d 619 [2008]; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]). Rivera, J.P., Miller, Balkin, Leventhal and Hall, JJ., concur.