Opinion
July 8, 1996
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
A motion seeking vacatur of a default judgment may be granted if the movant establishes "excusable default" and presents an affidavit indicating a meritorious defense to the action (CPLR 5015 [a] [1]; see also, Grutman v. Southgate at Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527; 38 Holding Corp. v. City of New York, 179 A.D.2d 486, 487). The determination of what constitutes a reasonable excuse and a meritorious defense is generally within the sound discretion of the trial court ( see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693, 695; Grutman v. Southgate at Bar Harbor Home Owners' Assn., supra; Leogrande v. Glass, 106 A.D.2d 431, 432).
Here, the defendant sufficiently established that the principal reason for his failure to appear was that he resided in Africa during the plaintiff's various attempts at service of a summons and complaint and thus he had no knowledge that an action had been commenced. Without notice of the action, the defendant was incapable of taking the necessary procedural steps to protect his interests.
The plaintiff's contention that the defendant did not sufficiently establish a meritorious defense because he failed to prove usury by clear and convincing evidence, is without merit. Clear and convincing evidence of usury is the standard of proof in a civil trial as distinguished from a motion to vacate a default judgment in which the movant is not required to prove a particular claim or defense, but rather only to set forth facts sufficiently establishing that such claim or defense is "meritorious" ( compare, Freitas v. Geddes Sav. Loan Assn., 63 N.Y.2d 254, 260-261, with Grutman v. Southgate at Bar Harbor Home Owners' Assn., supra).
The Supreme Court did not improvidently exercise its discretion in declining to treat the plaintiffs' motion to dismiss the defendant's affirmative defense of usury as one for summary judgment. There was neither sufficient factual nor substantive legal support for such disposition ( see, Torres v. Huntington Coalition for Homeless, 206 A.D.2d 518, 519-520).
Finally, the plaintiff's motion to "reinstate" the default judgment was properly denied. Thompson, J.P., Joy, Krausman and Florio, JJ., concur.