Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered July 23, 2008. The order denied defendant's motion to vacate a default judgment.

Order affirmed without costs.

In this action to recover the principal sum of $901.66 for fuel oil sold and delivered, a default judgment was entered against defendant on May 7, 2008. By order entered July 23, 2008, the District Court denied defendant's motion to vacate the default judgment. This appeal ensued.

In order to vacate a default judgment under CPLR 5015 (a), a defaulting defendant must demonstrate a reasonable excuse for the default and a meritorious
defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Defendant failed to establish either. On appeal, defendant asserts, for the first time, that an answer was timely served. However, matters raised for the first time on appeal will not be considered (see Zappola v Caputo, 17 Misc 3d 126[A], 2007 NY Slip Op 51808[U] [App Term, 9th & 10th Jud Dists 2007]).

Accordingly, the order denying defendant's motion to vacate the default judgment is affirmed.

Rudolph, P.J., and Molia, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the order, grant defendant's motion to vacate [*2]the default judgment and dismiss the complaint in the following memorandum:

In my view, defendant's motion to vacate the default judgment should have been granted and the complaint should have been dismissed since there was a failure in the pleadings and proof. The complaint failed to establish any contractual relationship between the parties. The evidence adduced at the inquest showed that the fuel oil in question was delivered by someone other than plaintiff, and no proof was introduced connecting plaintiff with that company and its fuel oil charges. Thus, there was no basis for a judgment in favor of plaintiff, and the complaint should have been dismissed.
Decision Date: May 12, 2009