DeMartino v. Firestone Tire & Rubber Co.

In order to vacate an order entered upon default, a party must demonstrate that there was an excusable delay and a meritorious cause of action or defense (see, CPLR 5015 [a] [1]; Putney v Pearlman, 203 AD2d 333; Fennell v Mason, 204 AD2d 599; Schiavetta v McKeon, 190 AD2d 724). In this case, the plaintiff failed to sustain his burden of demonstrating a meritorious cause of action. Accordingly, the Supreme Court properly denied the plaintiff’s motion to vacate the order dated July 6,1993, which granted the branch of the defendants’ unopposed motion which was for summary judgment dismissing the complaint. Balletta, J. P., Thompson, Pizzuto and Altman, JJ., concur.