Opinion
2003-36 Q C.
Decided December 10, 2003.
Appeal by plaintiff from an order of the Civil Court, Queens County (C. Markey, J.), dated December 19, 2002, which denied plaintiffs motion to set aside the order entered June 26, 2002 which granted on default defendant Dawn Mosby's motion to vacate the default judgment entered July 18, 1991 against said defendant and to reinstate said judgment.
Order unanimously reversed without costs, plaintiffs motion to vacate the order entered June 26, 2002 granted and, upon such vacatur, defendant Dawn Mosby's underlying motion to vacate the default judgment entered July 18, 1991 insofar as it was against her denied and default judgment reinstated.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Plaintiff commenced the instant action in September 1990 to recover the sum of $7,535.55 representing 10 months' unpaid rent and damages to the apartment allegedly caused by defendants. Following an inquest, a default judgment was entered against the defendants on July 18, 1991. On June 12, 2002, defendant Dawn Mosby moved to vacate the default judgment insofar as asserted against her. She alleged that she never received the summons and endorsed complaint and that although she owed plaintiff three months' rent, plaintiff owed her monies since she not only paid the utilities for her apartment but unwittingly paid for the utilities of the basement apartment of the subject house as well. By order entered June 26, 2002, the court granted defendant's motion on default.
Thereafter, plaintiff moved to vacate said order and to reinstate the default judgment. In his moving papers, plaintiffs attorney established a reasonable excuse for defaulting, to wit, defendant's moving papers were served by mail upon him at an address where he no longer maintains an office. We note that included in the record is the envelope purportedly containing defendant's moving papers which was mailed to plaintiff's attorney but returned to defendant with the notation that the letter was undeliverable by the Post Office as plaintiffs attorney had moved.
Furthermore, plaintiff established a meritorious cause of action through the affidavit of his managing agent who stated that defendants owed rent for the aforementioned months and damaged the subject apartment. Accordingly, the default order should be set aside.
Turning to the merits of defendant's underlying motion to vacate the default judgment, we find that defendant was not entitled to relief pursuant to CPLR 317 or CPLR 5015 (a) since she failed to establish that she did not receive notice of the action in time to defend, or that her default in appearing and answering was not intentional ( see 96 Pierrepont v. Mauro, 304 AD2d 631). In light of the foregoing, the court below should have vacated the order entered June 26, 2002 which vacated the default judgment against defendant Dawn Mosby.