Deac v. Il Postino, Inc.

Summary

The Appellate Division, Second Department, affirmed an order denying the plaintiff's motion for summary judgment in an action seeking damages for personal injuries. Because the action had previously been dismissed on defendants' unopposed motion for summary judgment, the plaintiff first needed to move to vacate the default and demonstrate both a reasonable excuse and a potentially meritorious cause of action.

Holdings

1. A party may not move for summary judgment on the complaint while an order entered on that party's default granting the opposing party summary judgment dismissing the complaint remains in effect; the party must first move to vacate the default order.
2. The defaulting party must move to vacate the default and submit evidence in admissible form demonstrating both a reasonable excuse for the default and a potentially meritorious cause of action.

Questions Presented

1. Whether a plaintiff may move for summary judgment on the complaint while a prior order, entered on the plaintiff's default, granting defendants summary judgment dismissing the complaint remains in effect.
2. What procedure a defaulting party must follow to challenge an order made on default.

Disposition

affirmed