ALBA v. Talray Enterprises, Inc., etc., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Amanda ALBA, et al., Plaintiffs-Respondents, v. Joseph PASTORESSA, Executor of the Estate of Angelo Riviezzo, et al., Defendants-Appellants, Talray Enterprises, Inc., etc., et al., Defendants.

Decided: March 22, 2005

BUCKLEY, P.J., MARLOW, ELLERIN, GONZALEZ, SWEENY, JJ. Barry, McTiernan & Moore, New York (Anthony J. McNulty of counsel), for appellants. Jonathan C. Rice, New York, for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about March 30, 2004, which, in an action for personal injuries sustained when plaintiffs were hit by a car operated by defendant estate's decedent and owned by the other defendants, denied defendants' motion to vacate their defaults in appearing, unanimously affirmed, without costs.

Defendants have met neither requirement for vacating their default.   As an excuse for the decedent's failure to answer the complaint, defendants assert that he was already ill and dying in August 1999 when plaintiffs' motion for a default judgment was granted;  however, the relevant point in time is almost a year earlier, in September 1998, when the decedent was served.   Concerning the other defendants, who were also served in September 1998, not even a semblance of an excuse is offered for their defaults.   We also note defendants' long delay in moving to vacate their defaults after an executor for the decedent's estate was appointed (see Gerlin v. Homann Trucking, 303 A.D.2d 262, 757 N.Y.S.2d 21 [2003] ).   We also find that defendants have failed to present a meritorious defense.

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