Opinion
No. 2013–2228 Q C.
01-15-2015
State Farm Mutual Automobile Insurance Company as Subrogee of Francis Toussaint, Armeen WILLIAMS and Tameake MacKlin, Appellant, v. Brian Keith SADLER, Defendant, and Allah Lawhorne, Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 30, 2013. The order granted a motion by defendant Allah Lawhorne, sued herein as Alcah Maurd Lawlorne, to vacate so much of a default judgment entered January 23, 2006 as was against him.
ORDERED that the order is reversed, without costs, and the motion by defendant Allah Lawhorne, sued herein as Alcah Maurd Lawlorne, to vacate so much of the default judgment entered January 23, 2006 as was against him is denied; and it is further,
ORDERED that the Clerk of the Civil Court or his designee shall amend the caption of the default judgment to reflect defendant Allah Lawhorne's correct name and to further reflect that plaintiff is a subrogee and not an assignee.
In this subrogation action, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Allah Lawhorne, sued herein as Alcah Maurd Lawlorne (defendant), to vacate so much of a default judgment entered January 23, 2006 as was against him.
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] ). Defendant demonstrated neither. After entering into a so-ordered stipulation on May 25, 2007, pursuant to which so much of the default judgment as had been entered against him on January 23, 2006 was vacated, defendant subsequently failed to appear in court, resulting in the reinstatement of the default judgment on July 12, 2007. In his 2013 motion to vacate the default judgment, he gave no excuse whatsoever for his failure to appear in July 2007 and did not
explain the reason for his six-year delay in seeking to vacate the default judgment. Nor did his conclusory assertions, including his assertion that he did not owe any money, establish a meritorious defense to the action (see Allstate Ins. Co. v. Romeo, 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51504[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ), since he failed to demonstrate 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] ). Consequently, it was an improvident exercise of discretion for the Civil Court to grant defendant's motion.
Accordingly, the order is reversed and defendant's motion to vacate so much of the default judgment entered January 23, 2006 as was against him is denied.
We note that the caption of the default judgment and the other court papers do not correctly describe plaintiff and defendant. The Clerk of the Civil Court or his designee is directed to amend the caption of the default judgment and the other papers to reflect defendant's name as Allah Lawhorne and plaintiff's description as “subrogee” rather than “assignee” (see CPLR 5019[a] ), and the caption of the appeal has been so amended.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.