Stevenson v. City of New York (248 A.D.2d 248, 1998)

—Order (denominated decision and judgment), Supreme Court, New York County (Jane Solomon, J.), entered on or about October 25, 1996, which, in an action for malicious prosecution, denied plaintiffs motion to vacate a prior order of the same court and Justice granting, on default, defendants’ motion to dismiss the complaint for failure to serve a notice of claim, unanimously affirmed, without costs.

A motion to vacate a default requires both a reasonable excuse and a showing of a meritorious claim. Here, while conceding that the failure to serve a notice of claim is fatal to any State-based tort claim, plaintiff contends that he nevertheless has a meritorious Federal-based tort claim under 42 USC § 1983. We disagree. No facts are adduced tending to show that plaintiff was selectively prosecuted for building code violations because of his race, or that race-based prosecutions were official policy or an officially sanctioned custom (see, Monell v New York City Dept. of Social Servs., 436 US 658, 691).

Concur — Ellerin, J. P., Wallach, Rubin and Tom, JJ.