Opinion
2003-01967.
Decided December 15, 2003.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 11, 2003, which, inter alia, granted the defendant's motion to vacate a judgment entered upon his default in appearing and answering.
Rubenstein Rynecki (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants.
Kelly, Rode Kelly, LLP, Mineola, N.Y. (Matthew I. Littman and Loris Zeppieri of counsel), for respondent.
Before: THOMAS A. ADAMS, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
To vacate a default, the moving party must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action ( see Weekes v. Karayianakis, 304 A.D.2d 561; cf. Antoku v. Grace Indus., 295 A.D.2d 294; Fuller v. Tae Kwon, 259 A.D.2d 662). The determination of what constitutes a reasonable excuse is left to the sound discretion of the court ( see Holt Constr. Corp. v. J R Music World, 294 A.D.2d 540; Matter of Gambardella v. Ortov Light., 278 A.D.2d 494). Further, public policy favors a determination of controversies on their merits ( see Eastern Resource Serv. v. Mountbattan Sur. Co., 289 A.D.2d 283, 284; Darrell v. Yurchuk, 174 A.D.2d 557).
Here, the Supreme Court providently exercised its discretion in accepting the defendant's proffered excuse that his insurance carrier was actively engaged in settlement negotiations with the plaintiff's counsel, and that the plaintiff's counsel never mentioned that he would be moving for leave to enter a default judgment ( see Lehrman v. Lake Katonah Club, 295 A.D.2d 322; Swain v. Janzen, 121 A.D.2d 378, 379). Additionally, the defendant established the existence of a meritorious defense based upon the circumstances of the accident, which indicate that the plaintiff could be found at least partially at fault in the happening of the accident.
ALTMAN, J.P., S. MILLER, McGINITY, ADAMS and MASTRO, JJ., concur.