Opinion
2008-123 Q C.
Decided December 3, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered November 14, 2007. The order granted defendant's motion to vacate a default judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
In this subrogation action to recover for property damage in the principal sum of $2,336.64 incurred in a motor vehicle accident, service of the pleadings was upon the New York State Secretary of State, and a copy was mailed to defendant at an address in Detroit, Michigan ( see Vehicle and Traffic Law § 253). Defendant failed to appear and, after an inquest, a default judgment was entered in favor of plaintiff. Subsequently, defendant was notified by the New York State Department of Motor Vehicles that his driver's license was suspended because of the unsatisfied judgment. Defendant moved to vacate the default judgment. He and plaintiff's attorney then entered into a so-ordered stipulation, which provided that the default judgment was vacated and the suspension of defendant's driver's license was lifted. The court directed the pro se clerk to place the matter on the trial calendar and notify the parties of a conference date. Defendant served a verified answer, which listed his address as an address in New York City and which set forth a defense to the action, stating that his vehicle was struck by the vehicle which was operated by plaintiff's subrogor.
At the next hearing, the court granted plaintiff's oral motion to reinstate the judgment, upon defendant's failure to appear. Defendant again moved to vacate the judgment, asserting that he had never received notice of the hearing. Plaintiff opposed the motion, arguing that defendant failed to provide a "legitimate" excuse for the default. Plaintiff further asserted that defendant did not proffer a meritorious defense. By order entered November 14, 2007, the court granted defendant's motion to vacate the default judgment and vacated the Department of Motor Vehicle's suspension of defendant's driver's license and loss of his driving privileges. This appeal by plaintiff ensued.
A party 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; Jackson-Cutler v Long, 2 AD3d 590; Titan Realty Corp. v Schlem, 283 AD2d 568). Here, the record indicates that there are two addresses for defendant in the court's file, one in Detroit and the other in New York City. Defendant denied receiving the notices to appear, and it is not clear from the record whether the notices were sent to defendant at the Detroit or New York City address. Under the circumstances, the court below did not improvidently exercise its discretion in finding that defendant's default was not willful.
Furthermore, defendant set forth in his verified answer ( see CPLR 105 [u]) a potentially meritorious defense ( see Montgomery v Cranes, Inc., 50 AD3d 981; Hodges v Sidial, 48 AD3d 633) that the vehicle driven by plaintiff's subrogor struck his vehicle. In view of the public policy which favors resolution of cases on the merits ( see Stuart v Kushner, 39 AD3d 535; Bell v Toothsavers, Inc., 213 AD2d 199), the court below properly granted defendant's motion to vacate the default judgment, and the order is affirmed.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.