Opinion
No. 2011–841 Q C.
2012-04-10
ALLSTATE INSURANCE COMPANY, as Subrogee of Prymas Roofing & Siding, Appellant, v. YSAC CORP., Defendant, and Cheon Jae Cho, Respondent.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered November 29, 2010. The order granted defendant Cheon Jae Cho's motion to vacate a default judgment insofar as entered against him.
ORDERED that the order is reversed, without costs, and defendant Cheon Jae Cho's motion to vacate a default judgment insofar as entered against him is denied.
In this subrogation action, a default judgment was entered against defendants. Cheon Jae Cho (defendant) moved to vacate the default judgment insofar as entered against him, and the Civil Court granted the motion.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for failing to appear and the existence of a meritorious defense to the action ( see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986];Putney v. Pearlman, 203 A.D.2d 333 [1994] ). Even assuming that defendant demonstrated a reasonable excuse for his default, in asserting that he did not receive any paperwork from the court ( see State Farm Fire & Cas. Co. v. MD Servs. of NY, Inc., 26 Misc.3d 136[A], 2010 N.Y. Slip Op 50162[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ), he did not demonstrate that he had a meritorious defense to the action, since he failed to make any showing that he was not responsible for the underlying motor vehicle accident ( see State Farm Ins. Co. v. Champion Furniture, Inc., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50238[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). Consequently, the Civil Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment insofar as entered against him.
Accordingly, the order is reversed, defendant's motion to vacate the default judgment insofar as entered against him is denied, and the default judgment is reinstated.