DiPasquale v Security Mut. Life Ins. Co. of N.Y. (2004 NY Slip Op 09008)

DiPasquale v Security Mut. Life Ins. Co. of N.Y.

2004 NY Slip Op 09008 [13 AD3d 100]

December 7, 2004

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 23, 2005

Christopher E. DiPasquale, Appellant,
v
Security Mutual Life Insurance Company of New York et al., Respondents.

—[*1]

Order, Supreme Court, New York County (Paula Omansky, J.), entered October 6, 2003, which denied plaintiff's motion to vacate his default on an earlier dismissal motion for failure to state a cause of action, and to grant leave to amend his complaint, unanimously affirmed, with costs.

In order to vacate a default, a plaintiff must offer a reasonable excuse for the default and demonstrate merit to the complaint. Amendment of a complaint may be denied, in the exercise of discretion, where the proposed amended cause is also without merit (Ava & Co. v Olympic Tower Assoc., 259 AD2d 315, 316 [1999]). The original complaint was clearly without merit, and the proposed amended complaint sought to reinstate a claim that the court had already dismissed on the merits. Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.