Paula Lockard, Plaintiff–Appellant, v. Betty Sopolsky, et al., Defendants–Respondents.

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

Paula Lockard, Plaintiff–Appellant, v. Betty Sopolsky, et al., Defendants–Respondents.


Decided: March 29, 2011

Tom, J.P., Sweeny, Catterson, Acosta, Manzanet–Daniels, JJ. Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellant. James G. Dibbini & Associates, P.C., Yonkers (James G. Dibbini of counsel), for respondents.


Order, Supreme Court, New York County (Joan A. Madden, J.), entered August 13, 2010, which, to the extent appealed from, granted defendant's motion to vacate the default judgment dismissing the action, unanimously reversed, on the law and the facts, without costs, and the motion denied.

Defendant failed to demonstrate the reasonable excuse and meritorious defense required to vacate a judgment on the ground of excusable default (CPLR 5015 [a];  see Benson Park Assoc., LLC v. Herman, 73 AD3d 464, 465 [2010] ).   The record shows that she was represented by counsel, obtained multiple extensions of time to answer the complaint, and was aware of upcoming deadlines.   Nevertheless, counsel failed to serve an answer or request an additional extension of time to serve, and defendant offered no explanation for this failure (see Youni Gems Corp. v. Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010], Tandy Computer Leasing v. Video X Home Lib., 124 A.D.2d 530, 531 [1986] ).   In defense of this personal injury action alleging that defendant failed to maintain the sidewalk abutting her building in a reasonably safe condition, defendant claims that the defect may have been caused by the City of New York six years earlier.   This defense is unsupported by any evidence (see Facsimile Communications Indus., Inc. v NYU Hosp. Ctr., 28 AD3d 391, 392 [2006];  Peacock v. Kalikow, 239 A.D.2d 188, 190 [1997] ).   Moreover, even if proved, it would not absolve defendant, an abutting landowner with constructive notice of the defect, from liability (see Early v. Hilton Hotels Corp., 73 AD3d 559, 561 [2010];  Administrative Code of City of N.Y. § 7–210).