Opinion
2008-1768 Q C.
Decided October 13, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered July 31, 2008, deemed from a judgment of the same court entered September 3, 2008 (CPLR 5501 [c]). The judgment, entered pursuant to the July 31, 2008 order granting defendant's motion to vacate a default judgment and, upon such vacatur, for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
Plaintiff, a taxicab driver, sued defendant to recover damages for an assault allegedly committed when the driver of defendant's automobile, in which defendant was a passenger, punched plaintiff. Defendant interposed as a defense, inter alia, that the complaint failed to state a cause of action. The matter was stricken from the trial calendar, and by order entered June 5, 2007, the Civil Court (Charles S. Lopresto, J.) granted plaintiff's motion to restore the action to the trial calendar and directed the pro se clerk to notify all parties of the trial date. On January 11, 2008, after an inquest held following defendant's failure to appear on December 12, 2007, the Civil Court entered a default judgment in favor of plaintiff. Subsequently, the court (Carolyn E. Wade, J.) granted defendant's motion to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. This appeal ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (CPLR 5501 [c]).
A defendant seeking to vacate a judgment on the ground of excusable default (CPLR 5015 [a] [1]) must establish both a reasonable excuse for the default and the existence of a meritorious defense ( Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Teachers Fed. Credit Union v Jones , 23 Misc 3d 139[A], 2009 NY Slip Op 50967[U] [App Term, 9th 10th Jud Dists 2009]; Capital One Bank v Erhabor , 20 Misc 3d 132[A], 2008 NY Slip Op 51455[U] [App Term, 2d 11th Jud Dists 2008]). Defendant's explanation for the default, that he was not notified that the case had been restored to the trial calendar, states a reasonable excuse for his failure to appear ( e.g. Birky v Katsilogiannis , 37 AD3d 631 , 632; Vollaro v Bevilacqua , 33 AD3d 910 ; Adamo v State of New York , 13 AD3d 472 ; Krebs v Cabrera, 250 AD2d 736, 737).
In addition, defendant established a meritorious defense, and he was entitled to summary judgment based on that defense. Plaintiff acknowledged that defendant was not her attacker, and she predicated her theory of liability on allegations that defendant was liable for her injuries, in essence, as an aider and abettor. To establish a triable issue of such liability, a plaintiff must assert facts tending to show that defendant "encouraged the assault and that such encouragement was a substantial factor in causing the assault" ( Wilson v DiCaprio, 278 AD2d 25, 26). Here, the allegations do not, if true, establish that defendant "committed any overt act in furtherance of the assault, that [he] acted in concert with [plaintiff's assailant] in planning the assault, or that [defendant] asked [the assailant] to commit the assault" ( Gaige v Kepler, 303 AD2d 626, 627; see also Gurfein v Kelly, 259 AD2d 664, 665).
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.