Hill v Stone
2014 NY Slip Op 00090 [113 AD3d 595]
January 8, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 5, 2014


Winston Hill, Respondent,
v
Barbara Stone, Appellant.

[*1] Frank Wharton, Brooklyn, N.Y., for appellant.

Seener & Seener, New York, N.Y. (Steven Seener of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 3, 2012, which denied her motion to vacate an order of the same court dated November 1, 2010, granting the plaintiff's motion for leave to enter a judgment on the issue of liability, upon her failure to appear or answer.

Ordered that the order dated April 3, 2012, is affirmed, with costs.

A defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825 [2013]; Arias v First Presbyt. Church in Jamaica, 100 AD3d 940, 941 [2012]). The defendant's unsubstantiated assertions that she engaged in a telephone conversation with the plaintiff's attorney in an effort to avert litigation and that she could not initially afford an attorney did not constitute a reasonable excuse for her failure to appear or answer (see U.S. Bank N.A. v Slavinski, 78 AD3d 1167 [2010]; O'Donnell v Frangakis, 76 AD3d 999, 1000 [2010]; Matter of Nieto, 70 AD3d 831, 832 [2010]; Fattarusso v Levco Am. Improvement Corp., 144 AD2d 626, 627 [1988]). Since the defendant failed to demonstrate a reasonable excuse for her default, the Supreme Court properly denied her motion to vacate the order dated November 1, 2010, which granted the plaintiff leave to enter a judgment on the issue of liability. Contrary to the defendant's contention, the plaintiff's alleged failure to file a verification or affidavit of the facts constituting the claim in support of his motion for leave to enter a default judgment pursuant to CPLR 3215 (f) does not relieve the defendant of her burden under CPLR 5015 (a) (1) or otherwise constitute a basis for vacatur of the November 1, 2010, order (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [2013]; Zaidman v Zaidman, 90 AD3d 1035, 1036 [2011]). Rivera, J.P., Hall, Roman and Cohen, JJ., concur.