Puswald v Adelphi Auto Repair, Inc.

[*1] Puswald v Adelphi Auto Repair, Inc. 2010 NY Slip Op 51347(U) [28 Misc 3d 134(A)] Decided on July 29, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2009-581 N C.

Irene Puswald, Respondent,

against

Adelphi Auto Repair, Inc. and VINCENTE FONTE, Appellants.

Appeal from an order of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), dated February 27, 2009. The order denied defendants' motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

In this small claims action, defendants failed to appear upon a trial date after the action had been marked final against both sides. Following an inquest, judgment was entered in plaintiff's favor in the principal sum of $1,827.78. Thereafter, defendants moved to vacate the default judgment. The District Court denied their motion, and defendants appeal.

A defendant seeking to open a default judgment upon the ground of excusable default is required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Ford Motor Credit Co. v Stim, 13 Misc 3d 144[A], 2006 NY Slip Op 52320[U] [App Term, 9th & 10th Jud Dists 2006]). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the [District] Court" (Levi v Levi, 46 AD3d 519, 519 [2007]). Under the circumstances presented, the District Court's denial of defendants' motion, based upon a finding that defendants did not demonstrate a reasonable excuse for their default, was not an improvident exercise of its discretion. Accordingly, the order denying defendants' motion to vacate the default judgment is affirmed.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur. [*2]
Decision Date: July 29, 2010