Malvaso v. Frederick

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant Miller to vacate his default. Miller established a meritorious defense and an excuse for his delay and default (see, Pollack v Eskander, 191 AD2d 1022, appeal dismissed 81 NY2d 1067). In light of that vacatur, the court also properly vacated its prior order granting plaintiffs partial summary judgment against defendant Nothnagle, whose liability is premised solely upon the acts of Miller. (Appeals from Order of Supreme Court, Monroe County, Curran, J.—Vacate Default.) Present—Den-man, P. J., Green, Wesley, Balio and Boehm, JJ.