Richard K. Foster, Respondent, v. Bally's Total Fitness Corporation, Appellant

Richard K. Foster, Respondent, v Bally’s Total Fitness Corporation, Appellant. [686 NYS2d 716] [MAJORITY] —In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (DiBIasi, J.), dated March 11, 1998, which denied its motion, inter alia, to vacate an order of the same court (Rudolph, J.), entered December 9, 1997, granting the plaintiffs motion for judgment on the issue of liability upon its failure to timely serve an answer. Ordered that the order is affirmed, with costs. The Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate the order entered upon its failure to timely serve an answer, given its failure to state an excusable delay and a meritorious defense (see, CPLR 5015 [a] [1]; Miles v Blue Label Trucking, 232 AD2d 382; Fayet v Fayet, 214 AD2d 534; Martyn v Jones, 166 AD2d 508; Cooper Motor Leasing v Data Discount Ctr., 125 AD2d 454). O’Brien, J. P., Ritter, Joy and Altman, JJ., concur.