State Farm Mut. Auto. Ins. Co. v Safe or Secure Co. (2010 NY Slip Op 50159(U))

State Farm Mut. Auto. Ins. Co. v Safe or Secure Co.

2010 NY Slip Op 50159(U) [26 Misc 3d 136(A)]

Decided on January 29, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

State Farm Mutual Automobile Insurance Company a/s/o RAYMOND PEREZ, MANUEL SANCHEZ and ANGEL SANTIAGO, Appellant,

against

Safe or Secure Company, Defendant, -and- DAVID AUSCH, Respondent.

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 defendant David Ausch's motion to vacate a default judgment insofar as entered against him.

In this subrogation action, a default judgment was entered against defendants. Defendant David Ausch 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 [1986]). In the instant case, defendant Ausch proffered a reasonable excuse for his default, in asserting that he failed to appear in court because he was not notified of the court date (see Hodges v Sidial, 48 AD3d 633 [2008]; Birky v Katsilogiannis, 37 AD3d 631 [2007]; Vollaro v Bevilacqua, 33 AD3d 910 [2006]; State Farm [*2]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]). There is nothing in the record to indicate whether notice of said court appearance was in fact sent to defendant Ausch. We conclude that, contrary to plaintiff's contentions, defendant Ausch did not demonstrate such a pattern of default or neglect as would be considered intentional and, therefore, not excusable (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]).

Furthermore, defendant Ausch set forth a potentially meritorious defense to the action in that he made allegations regarding the facts of the underlying motor vehicle accident which, if true, were sufficient to show that he was not responsible for the accident (see State Farm Mut. Auto. Ins. Co. v Gueye, 21 Misc 3d 143[A], 2008 NY Slip Op 52457[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, in light of the public policy favoring resolution of cases on the merits (see Stuart v Kushner, 39 AD3d 535 [2007]; Bell v Toothsavers, Inc., 213 AD2d 199 [1995]), in our view, it was not an improvident exercise of discretion for the Civil Court to grant defendant Ausch's motion to vacate the default judgment insofar as entered against him, and the order, insofar as appealed from, is therefore affirmed.