Montesdeoca v Krams

[*1] Montesdeoca v Krams 2004 NY Slip Op 50403(U) Decided on February 26, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-859 Q C

JULIO MONTESDEOCA, Appellant,

against

VIKTORS KRAMS, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (C. Markey, J.), entered on April 18, 2003, which denied plaintiff's motion to set aside the order dated February 3, 2003, which granted, on default, defendant's motion to vacate a default judgment.

Order affirmed without costs.

In this negligence action, a default judgment was entered against defendant on April 24, 2002. Thereafter, defendant moved to vacate the default judgment. The court below granted defendant's motion to the extent of setting the matter down for a traverse hearing. Plaintiff and his attorney failed to appear at said hearing, whereupon the court below granted defendant's motion on default. Plaintiff moved to vacate said order and to reinstate the default judgment. Plaintiff's attorney alleged that he was not aware that a traverse hearing was ordered by the court. To vacate plaintiff's default, it was incumbent upon plaintiff to establish a reasonable excuse for the default and a meritorious claim (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). CPLR 2005 allows courts to excuse a default due to law office failure, but mere neglect will not be accepted as a reasonable excuse (Incorporated Vill. of Hempstead v Jablonsky, 283 AD2d 553 [2001]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the trial court (Parker v City of New York, 272 AD2d 310 [2000]). The court below properly exercised its discretion in rejecting counsel's excuse for his failure to appear at the traverse hearing. Thus, plaintiff failed to sufficiently establish grounds which warrant setting aside the order granting defendant's motion to vacate the default judgment.

Pesce, P.J., and Rios, J. concur.

Golia, J., taking no part.
Decision Date: February 26, 2004