STEIN v. YONKERS CONTRACTING INC (1997)

In two actions to recover damages for personal injuries, etc., the defendant Yonkers Contracting, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated April 24, 1996, in Action No. 1, as denied its motion to vacate a judgment on the issue of liability entered in favor of the plaintiffs and against it upon its default in appearing, and the defendants New York City Department of Transportation, Greenman and Peterson, Inc., and Bettigole, Andrews & Clark, Inc., appeal from the same order.

ORDERED that the appeals taken by the defendants New York City Department of Transportation, Greenman and Peterson, Inc., and Bettigole, Andrews & Clark, Inc., are withdrawn pursuant to a letter dated September 26, 1997;  and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Yonkers Contracting, Inc.;   and it is further,

ORDERED that the respondents are awarded one bill of costs.

 A party attempting to vacate a judgment entered upon its default in appearing must establish both a reasonable excuse for the default and a meritorious defense (see, Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66;  Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919).   Here, the appellant failed to establish a meritorious defense to the action.   The collapse of the scaffolding upon which the plaintiff was standing was a prima facie violation of Labor Law § 240(1) (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Chaitovitz v. Lewis, 222 A.D.2d 392, 634 N.Y.S.2d 727;  Bryan v. City of New York, 206 A.D.2d 448, 614 N.Y.S.2d 554;  Styer v. Walter Vita Constr., 174 A.D.2d 662, 571 N.Y.S.2d 524).   The appellant failed to submit evidence in admissible form to rebut this prima facie showing (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT.