D.J. Auto Sales v Fomba (2010 NY Slip Op 50712(U))

D.J. Auto Sales v Fomba

2010 NY Slip Op 50712(U) [27 Misc 3d 133(A)]

Decided on April 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.

D.J. Auto Sales a/a/o SILVIA ACOSTA, Appellant,

against

Vakaba Fomba, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda Kirwan, J.), entered June 1, 2009. The order, insofar as appealed from as limited by the brief, granted defendant's motion to vacate a default judgment.

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

In this action, the Civil Court granted a motion by defendant to vacate a default judgment. This appeal by plaintiff ensued.

A defendant seeking to vacate a default judgment on the ground of excusable default 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]). Defendant demonstrated neither. He did not deny having received the summons and complaint, and his assertion that his attorney told him not to come to court was "bereft of detail and corroboration" (see Canty v Gregory, 37 AD3d 508 [2007]; see also Desiderio v Devani, 24 AD3d 495 [2005]). Defendant's papers were therefore insufficient to establish a reasonable excuse for his default. Nor did defendant establish a meritorious defense to the action since 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 NY Slip Op 50238[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). His conclusory assertion that he was not responsible for the accident and that it was "the claimant's fault" falls short of demonstrating that he had a meritorious defense, since it did not address how the accident occurred (see Allstate Ins. Co. v Lake Three Inc., 15 Misc 3d 127[A], 2007 NY Slip Op 50532[U] [App Term, 1st Dept 2007]). Consequently, it was an improvident exercise of discretion for the Civil Court to grant [*2]defendant's motion to vacate the default judgment.

Even if defendant's motion were treated as one made pursuant to CPLR 317, defendant failed to demonstrate that he did not personally receive notice of the summons in time to defend and, as noted above, that he had a meritorious defense.

Accordingly, the order, insofar as appealed from, is reversed, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.