Opinion
No. 2013–2567 Q C.
03-26-2015
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of Nicole D. Steeley, Appellant, v. Eugene McCLAIN and Carla McClain, Respondents.
Opinion
ORDERED that the order is reversed, without costs, defendants' separate motions to vacate the default judgment insofar as entered against each of them are denied, and the default judgment is reinstated.
In this subrogation action, plaintiff appeals from an order of the Civil Court which granted defendants' separate motions to vacate a default judgment insofar as entered against each of them on September 21, 2006.
A defendant seeking to vacate a default judgment based on excusable default must demonstrate both 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 N.Y.2d 138, 141 [1986] ). A motion to vacate a default judgment pursuant to CPLR 5015(a)(1) must be made “within one year after service of a copy of the judgment ... with written notice of its entry upon the moving party, or, if the moving party has entered the judgment ..., within one year after such entry.” As the record contains no proof of service of the notice of entry of the default judgment, the one-year deadline of CPLR 5015(a)(1) was not triggered (see Gottlieb v. Northriver Trading Co. LLC, 106 AD3d 580 [2013] ). Nevertheless, neither defendant demonstrated a reasonable excuse for defaulting. The process server's affidavits of service constituted prima facie evidence that defendant Eugene McClain had been validly served with process pursuant to CPLR 308(4), and that defendant Carla McClain had been validly served pursuant to CPLR 308(2). We note that neither defendant denied having been served with the complaint or swore to specific facts to rebut the statements in the process server's affidavits in order to establish a reasonable excuse for the default (see Chichester v. Alal–Amin Grocery & Halal Meat, 100 AD3d 820 [2012] ; Pezolano v. Incorporated City of Glen Cove, 71 AD3d 970 [2010] ).
Since service was made “other than by personal delivery,” even if the motions were treated as having been made pursuant to CPLR 317, which permits a defendant “to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense,” there is no basis to grant either motion.
With respect to defendant Carla McClain, the record shows that she did not seek vacatur until approximately six and one-half years after obtaining knowledge of entry of the judgment. As her motion was untimely, she was barred from obtaining vacatur of so much of the default judgment as was entered against her, pursuant to CPLR 317 (see Anderson v. GHI Auto Serv., Inc., 45 AD3d 512 [2007] ). As to defendant Eugene McClain, although the record is inconclusive as to when he obtained knowledge of entry of the judgment, he did not allege facts sufficient to demonstrate a meritorious defense to the action, because he failed to make any showing that he was not responsible for the underlying motor vehicle accident (see State Farm Ins. Co. v. Champion Furniture, Inc., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50238[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). His mere assertion that he was not the driver of his vehicle at the time of the accident does not constitute a meritorious defense, since Vehicle and Traffic Law section 388(1) places responsibility for any harm resulting from the operation of a vehicle upon the owner of the vehicle.
Accordingly, the order is reversed, defendants' separate motions to vacate the default judgment insofar as entered against each of them are denied, and the default judgment is reinstated.
WESTON, J.P., SOLOMON and ELLIOT, JJ., concur.