State Farm Mut. Auto. Ins. Co. v Delacruz (2010 NY Slip Op 50160(U))

State Farm Mut. Auto. Ins. Co. v Delacruz

2010 NY Slip Op 50160(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This opinion is uncorrected and will not be published in the printed Official Reports.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 AISHA CAMPBELL, Appellant,

against

Pedro Nunez Delacruz, Respondent, -and- JOSEPH GUICHARD, Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered January 15, 2009. The order, insofar as appealed from as limited by the brief, granted defendant Pedro Nunez Delacruz's motion to vacate a default judgment insofar as entered against him.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant Pedro Nunez Delacruz's motion to vacate the default judgment insofar as entered against him is denied, and the default judgment as against him is reinstated.

In this subrogation action, a default judgment was entered against defendants. Defendant Pedro Nunez Delacruz 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]). Although defendant Pedro Nunez Delacruz may have proffered a reasonable excuse for his default, in asserting that he was not notified of the court date (see Hodges v Sidial, 48 AD3d 633 [2008]; Birky v Katsilogiannis, [*2]37 AD3d 631 [2007]; Vollaro v Bevilacqua, 33 AD3d 910 [2006]; State Farm 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]), he did not establish a meritorious defense to the action (see Thakurdyal v 341 Scholes St., LLC, 50 AD3d 889 [2008]; Capital One Bank v Erhabor, 20 Misc 3d 132[A], 2008 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2008]) in that he failed to make any showing that he was not responsible for the underlying motor vehicle accident (see State Farm Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50238[U]; State Farm Auto. Ins. Co. v A & G Luxury Limo, Inc., 21 Misc 3d 144[A], 2008 NY Slip Op 52471[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, it was an improvident exercise of discretion for the Civil Court to grant defendant Pedro Nunez Delacruz's motion to vacate the default judgment insofar as entered against him.

Accordingly, the order, insofar as appealed from, is reversed, defendant Pedro Nunez Delacruz's motion to vacate the default judgment insofar as entered against him is denied, and the default judgment as against him is reinstated.