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HSBC Bank USA v Leiter
2005 NY Slip Op 51582(U) [9 Misc 3d 130(A)]
Decided on September 30, 2005
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: September 30, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., RIOS and BELEN, JJ.
2004-1485 K C

HSBC Bank USA, f/k/a Marine Midland Bank, Appellant,

against

Boruch Leiter, Respondent.


Appeal from orders of the Civil Court of the City of New York, Kings County (Arthur M. Schack, J.), entered July 15, 2003 and October 29, 2003. The orders, respectively, granted defendant's motion to dismiss the action on default and denied plaintiff's motion seeking vacatur of the order dismissing the action.


Appeal from order entered July 15, 2003 unanimously dismissed.

Order entered October 29, 2003 unanimously reversed without costs, plaintiff's motion to vacate dismissal of the action granted on condition that, within 30 days of the date of the order entered hereon, plaintiff comply with defendant's discovery demands, otherwise plaintiff's motion denied; as so modified, affirmed without costs.

At the outset we note that no appeal lies from an order entered on default of the appealing party (see CPLR 5511).

Plaintiff established a meritorious claim against defendant and a reasonable excuse for the default (CPLR 5015 [a] [1]). Therefore, the motion to vacate the order dismissing the action should have been granted on condition that plaintiff comply with defendant's discovery demands within 30 days.
Decision Date: September 30, 2005