GAINEY v. ANORZEJ (2006)

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated October 22, 2004, which granted the defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated June 7, 2002, granting the plaintiffs' motion for leave to enter judgment on the issue of liability upon his default in appearing or answering, pursuant to CPLR 3012(d) to extend his time to serve an answer and to compel them to accept his answer, and pursuant to CPLR 5015(a)(5) to vacate and set aside an inquest on damages taken on July 12, 2002, at the conclusion of which the court awarded them damages in the principal sum of $100,000.

ORDERED that the order is reversed, on the law and as an exercise of discretion, with costs, the motion is denied, and the order dated June 7, 2002, and the damages award are reinstated.

 The defendant does not deny that he had notice of the June 2002 order granting the plaintiffs' motion for leave to enter judgment on the issue of liability upon his default in appearing or answering the complaint.   Accordingly, that branch of the defendant's application which was to vacate his default in appearing or answering the complaint on the ground of excusable neglect pursuant to CPLR 5015(a)(1), made two years after he had notice of the order entered upon his default, should have been denied as untimely (see Hartcorn v. Hartcorn, 299 A.D.2d 395, 749 N.Y.S.2d 441;  Kachar v. Berlin, 296 A.D.2d 479, 745 N.Y.S.2d 471;  Nahmani v. Town of Ramapo, 262 A.D.2d 291, 691 N.Y.S.2d 552;  Matter of Brittany J., 235 A.D.2d 310, 653 N.Y.S.2d 109).

 Furthermore, in view of the absence of a reasonable excuse for the inordinate delay in appearing or answering the complaint, the failure to respond to the plaintiffs' motion for leave to enter a default judgment on the issue of liability, the failure to appear at the scheduled inquest (see Trotman v. Aya Cab Corp., 300 A.D.2d 573, 751 N.Y.S.2d 875;  Habacht v. Caroccia, 133 A.D.2d 338, 519 N.Y.S.2d 236), and the defendant's pattern of willful neglect and default (see Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66), the Supreme Court improvidently exercised its discretion in granting the defendant's motion to extend his time to serve an answer and to compel the plaintiffs to accept it pursuant to CPLR 3012(d) (see Andrade v. Ranginwala, 297 A.D.2d 691, 747 N.Y.S.2d 385;  Jerrick Waterproofing v. Park Plaza Owners Corp., 251 A.D.2d 628, 676 N.Y.S.2d 490;  cf. Friedman v. Ostreicher, 22 A.D.3d 798, 803 N.Y.S.2d 703;  Trimble v. SAS Taxi Co. Inc., 8 A.D.3d 557, 778 N.Y.S.2d 707;  Goodman v. New York City Health & Hosps. Corp., 2 A.D.3d 581, 768 N.Y.S.2d 365).

In light of our determination, that branch of the defendant's motion which was pursuant to CPLR 5015(a)(5) to vacate and set aside the inquest on damages on the ground of vacatur of the order dated June 7, 2002, upon which the inquest was based, must also be denied.