Opinion
CA 03-01695.
February 11, 2004.
Appeal from an order of the Supreme Court, Onondaga County (Charles T. Major, J.), entered October 15, 2002. The order, insofar as appealed from, vacated a default judgment against defendant Fireman's Fund Insurance Co.
TREVETT, LENWEAVER SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO GLEASON OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
CARON, CONSTANTS WILSON, NEW YORK CITY (DARREL M. SEIFE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: GREEN, J.P., PINE, WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking a declaration that Fireman's Fund Insurance Co. (defendant) must defend and indemnify them in the underlying action. Plaintiffs moved for a default judgment upon the failure of defendant to answer the complaint within the extension of time granted to it by plaintiffs' counsel. Supreme Court granted plaintiffs' motion for a default judgment.
Contrary to plaintiffs' contention, the court properly granted defendant's subsequent motion to vacate the default judgment. To obtain relief from a default judgment on the ground of excusable default ( see CPLR 5015 [a] [1]), a defendant is required to establish both a reasonable excuse for the default and the existence of a meritorious defense ( see Hayes v. R.S. Maher Son, 303 A.D.2d 1018). A disposition on the merits is the favored method of resolution and, "in the absence of an improvident exercise of discretion, [appellate courts] will defer to the determination by Supreme Court as to whether sufficient facts exist so as to warrant vacatur" ( Colonie Constr. Prods. v. Titan Indem. Co., 265 A.D.2d 716, 718-719). Here, defendant tendered a reasonable excuse for the default and established the existence of a meritorious defense, i.e., late notice. In addition, the delay was brief. Thus, we conclude that defendant established its entitlement to vacatur of the default judgment ( cf. id.).