Appeal from an order of the District Court of Nassau County, First District (Margaret C. Reilly, J.), dated December 1, 2005. The order denied defendants' motion to dismiss the complaint and for entry of a default judgment on their counterclaim.

Order affirmed without costs.

On July 21, 2005, defendants moved to dismiss the complaint due to plaintiff's failure to respond to their demand for a bill of particulars and for entry of a default judgment in their favor due to plaintiff's failure to reply to their counterclaim. Plaintiff opposed the motion and annexed its response to defendants' demand to its opposition papers. The court below denied defendants' motion in its entirety. The instant appeal by defendants ensued.

A review of the record establishes that defendants were already in default when they made the subject motion to dismiss, as they had failed to appear for trial on July 5, 2005, at which time the matter had been marked "inquest clerk." Consequently, we find that as a result of the absence of a motion by defendants to open their default, setting forth in admissible form a reasonable excuse therefor and a meritorious defense, the court below properly denied defendants' motion.

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 29, 2006