State Farm Fire v. MD Ser. of N.Y.

Full title: STATE FARM FIRE CASUALTY COMPANY a/s/o CYNTHIA A. SPERLING, Appellant, v…

Court: Appellate Term of the Supreme Court of New York, Second Department

Date published: Jan 29, 2010

2010 N.Y. Slip Op. 50162 (N.Y. App. Term 2010)

907 N.Y.S.2d 104

Opinion

2009-936 Q C.

Decided January 29, 2010.

Appeal from an order of the Civil Court of the City of New York, Queens County "(Rudolph E. Greco Jr., J.), entered January 12, 2009. The order, insofar as appealed from as limited by the brief, granted the motion of defendant Justin M. Cauli to vacate a default judgment insofar as entered against him.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant Justin M. Cauli's motion to vacate the default judgment insofar as entered against him is denied and the default judgment as against him is reinstated.

PRESENT: PESCE, P.J., WESTON and RIOS, JJ.

In this subrogation action, a default judgment was entered against defendants. Defendant Justin M. Cauli moved to vacate the default judgment insofar as entered against him, and the Civil Court granted the motion. This appeal by plaintiff ensued.

A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense to the action ( see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141). Although defendant Justin M. Cauli proffered a reasonable excuse for his default in asserting that he had moved and that he had not been notified of the court date ( see e.g. Hodges v Sidial , 48 AD3d 633 ; Birky v Katsilogiannis , 37 AD3d 631; Vollaro v Bevilacqua , 33 AD3d 910 ; State Farm Ins. Co. v Champion Furniture, Inc. , 22 Misc 3d 134 [A], 2009 NY Slip Op 50238[U] [App Term, 2d, 11th 13th Jud Dists 2009]), he did not establish a meritorious defense to the action in that he failed to make any showing that he was not responsible for the underlying motor vehicle accident ( see State Farm Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50238[U]; State Farm Auto. Ins. Co. v A G Luxury Limo, Inc. , 21 Misc 3d 144 [A], 2008 NY Slip Op 52471[U] [App Term, 2d 11th Jud Dists 2008]). Consequently, it was an improvident exercise of discretion for the Civil Court to grant defendant Justin M. Cauli's motion to vacate the default judgment insofar as entered against him.

Accordingly, the order, insofar as appealed from, is reversed, defendant Justin M. Cauli's motion to vacate the default judgment insofar as entered against him is denied, and the default judgment as against him is reinstated.

Pesce, P.J., Weston and Rios, JJ., concur.