TORKIEH v. NEW YORK PLASTIC BAG INC (2004)

In an action, inter alia, to recover payment for the sale of goods, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated January 13, 2004, which conditionally granted the defendants' motion to vacate a judgment of the same court (Lewis, J.) entered October 2, 2002, against them upon their failure to oppose the plaintiff's cross motion for summary judgment.

ORDERED that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is denied, and the judgment is reinstated.

The defendants failed to establish a reasonable excuse for their default in opposing the plaintiff's cross motion for summary judgment.   Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants' motion to vacate a judgment entered upon an order granting the cross motion (see CPLR 2005, 5015;  Glibbery v. Cosenza & Assoc., 4 A.D.3d 393, 394, 771 N.Y.S.2d 401;  Grezinsky v. Mount Hebron Cemetery, 305 A.D.2d 542, 759 N.Y.S.2d 386;  Juarbe v. City of New York, 303 A.D.2d 462, 756 N.Y.S.2d 427;  Spells v. A & P Supermarkets, 253 A.D.2d 422, 675 N.Y.S.2d 310;  see also Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66;  Matter of A., 192 A.D.2d 529, 596 N.Y.S.2d 723).