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State Farm Insurance Company As Subrogee of Michael Tucker v. Linda M. Dunne

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 23, 2010

STATE FARM INSURANCE COMPANY AS SUBROGEE OF MICHAEL TUCKER,
APPELLANT,
v.
LINDA M. DUNNE, RESPONDENT, -AND- WILLIAM F. MCENRY,
DEFENDANT.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 14, 2009. The order granted defendant Linda M. Dunne's motion to vacate a default judgment insofar as it was entered against her.

State Farm Ins. Co. v Dunne

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2010

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

ORDERED that the order is reversed, without costs, and defendant Linda M. Dunne's motion to vacate the default judgment insofar as it was entered against her is denied.

In this subrogation action, a default judgment in favor of plaintiff was entered against defendants in 1999, based on an automobile collision between plaintiff's subrogor's vehicle and a vehicle operated by defendant William F. McEnry and allegedly owned by his wife, defendant Linda M. Dunne. In 2009, defendant Dunne moved to vacate the default judgment insofar as it was entered against her, and the District Court granted the motion. This appeal by plaintiff ensued.

A defendant seeking to vacate a default judgment based on excusable default "must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]; see CPLR 5015 [a] [1]). While the determination of what constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]), reversal is warranted where that court has improvidently exercised its discretion (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]).

In support of her motion, defendant Dunne did not deny having been served with process. Although Dunne may have shown a possibly meritorious defense to the action, her statement that it was her husband, defendant McEnry, who was involved in the accident and that she did not realize that she had to appear in court merely because she was married to him did not constitute a reasonable excuse for her default.

Moreover, Dunne did not move promptly to vacate the judgment. We note that, in opposition to Dunne's motion, plaintiff's counsel stated that, after the judgment had been entered in 1999, Dunne had contacted his office in 2000 and 2002, and had tentatively agreed to the terms of a settlement. Defendant Dunne, however, provided no explanation as to why she had waited until 2009 to move to vacate the default judgment insofar as it was entered against her (see Williams v Pratt Inst., 212 AD2d 692 [1995]; Madison Estates & Props., Inc. v Davern Realty Corp., 20 Misc 3d 133[A], 2008 NY Slip Op 51457[U] [App Term, 2d & 11th Jud Dists 2008]).

In view of the foregoing, we find that it was an improvident exercise of discretion for the District Court to grant defendant Dunne's motion to vacate the default judgment insofar as it was entered against her. Accordingly, the order is reversed, defendant Dunne's motion is denied, and the default judgment as against her is reinstated.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur. Decision

December 23, 2010

20101223

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