| Allstate Ins. Co. v Lawson |
| 2017 NY Slip Op 50821(U) [56 Misc 3d 128(A)] |
| Decided on June 16, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
against
Albert A. Lawson, Respondent.
Serpe, Andree & Kaufman (Jonathan H. Kaufman, Esq.), for appellant. Albert A. Lawson, respondent pro se (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered November 10, 2015. The order, insofar as appealed from, granted the branch of defendant's motion seeking, pursuant to CPLR 5015 (a), to vacate a default judgment of the same court entered November 12, 2014 upon an order of the same court (Richard G. Latin, J.) granting on default plaintiff's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking to vacate the default judgment is denied.
In this subrogation action, plaintiff appeals from an order of the Civil Court which, insofar as appealed from by plaintiff, granted the branch of defendant's motion seeking to vacate a default judgment entered against him on November 12, 2014.
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 NY2d 138, 141 [1986]). In addition to failing to demonstrate a reasonable excuse for his default in opposing plaintiff's summary judgment motion, defendant did not allege facts sufficient to demonstrate a meritorious defense to the action, because 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 Dept, 2d, 11th & 13th Jud Dists 2009]). His mere assertion that he was not driving his van at the time of the accident does not constitute a meritorious defense, since Vehicle and Traffic Law section 388 (1) places responsibility for any harm resulting from the operation of a vehicle upon the owner of the vehicle (see e.g. State Farm Mut. Auto. Ins. Co. v McClain, 47 Misc 3d 135[A], 2015 NY Slip Op 50490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, it was an improvident exercise of discretion for the Civil Court to grant the branch of defendant's motion seeking to vacate the default judgment entered against him.
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to vacate the default judgment is denied.
Solomon, J.P., Pesce and Elliot, JJ., concur.