DESSAIN v. FRANKLIN

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

Hubert DESSAIN, et al., appellants, v. Jean FRANKLIN, respondent.

Decided: January 31, 2006

THOMAS A. ADAMS, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, PETER B. SKELOS, and MARK C. DILLON, JJ. Latos Latos & Di Pippo, P.C., Astoria, N.Y. (Andrew Latos of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated January 19, 2005, which denied their motion pursuant to CPLR 6201(1) and 6212(a) for an order of attachment and granted the defendant's cross motion to vacate a judgment entered upon his default in appearing or answering the complaint and for leave to serve a late answer.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages.

The Supreme Court improvidently exercised its discretion in granting the defendant's cross motion to vacate his default in appearing or answering the complaint, and for leave to serve a late answer.   The defendant failed to present a reasonable excuse for his default and a meritorious defense (see CPLR 5015[a][1];  Fekete v. Camp Skwere, 16 A.D.3d 544, 545, 792 N.Y.S.2d 127;   Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 790 N.Y.S.2d 162;  Caputo v. Peton, 13 A.D.3d 474, 475, 787 N.Y.S.2d 92;  Mount Sinai Hosp. of Queens v. Hertz Corp., 3 A.D.3d 523, 524, 770 N.Y.S.2d 757).

The Supreme Court should have granted the plaintiffs' motion for an order of attachment, as they satisfied the requirements under CPLR 6201(1) and 6212(a).

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