| Vasquez v Transit USA |
| 2006 NY Slip Op 50144(U) [10 Misc 3d 145(A)] |
| Decided on February 3, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered September 30, 2004. The order granted defendant's motion to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint.
Order affirmed without costs.
In this action for breach of contract stemming from an interstate household move, defendant failed to appear for trial of the action, resulting in the entry of a default judgment of $3,000 against it. Defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint.
The court below properly exercised its discretion in vacating the default judgment and properly granted summary judgment to defendant. In the branch of its motion seeking to vacate the default judgment, defendant established a reasonable excuse for the default as well as a meritorious defense (CPLR 5015 [a] [1]; see e.g. U.S. Bus Corp. v J. S. Ben-Ezra Indus. Sales, Inc., 17 AD3d 451 [2005]). Upon the branch of its motion that sought summary judgment dismissing the complaint, defendant demonstrated that plaintiff is not a party to or in privity with a party to the contract. Defendant further made a prima facie showing that it was acting as the agent of a separate, albeit similarly named, corporate entity, and that it disclosed this fact. In opposition, plaintiff submitted no evidence that defendant was personally bound by the agreement. Thus, defendant was entitled to summary judgment dismissing the complaint ([*2]see Weinreb v Stinchfield, 19 AD3d 482 [2005]; Barthley v Autostar Funding LLC, 7 Misc 3d 130[A], 2005 NY Slip Op 50531[U] [App Term, 2d & 11th Jud Dists]).
We note that, contrary to defendant's contention, the Carmack Amendment to the Interstate Commerce Act (49 USC § 14706 [d]) provides for concurrent state and federal jurisdiction over actions against interstate carriers.
Plaintiff's remaining contentions are without merit and are improperly raised for the first time on appeal (see Matter of ELRAC, Inc. v Edwards, 270 AD2d 414 [2000]).
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 03, 2006