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Derrick Carty, Appellant v. Jean C. Jean-Pierre and Eddy Dumont

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


December 5, 2011

DERRICK CARTY, APPELLANT, --
v.
JEAN C. JEAN-PIERRE AND EDDY DUMONT, RESPONDENTS,
-AND-
BLASSELMA SEWELL AND RICARDO CARTY, DEFENDANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Devin P. Cohen, J.), entered July 21, 2009.

Carty v Jean-Pierre

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2011

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ

The order denied plaintiff's motion for leave to enter a default judgment as against defendants Jean C. Jean-Pierre and Eddy Dumont.

ORDERED that the order is affirmed, without costs.

In this action to recover damages for personal injuries sustained in an automobile accident, plaintiff moved for leave to enter a default judgment against defendants Jean C. Jean-Pierre and Eddy Dumont (defendants). The Civil Court denied the motion.

In order to avoid entry of a default judgment upon a failure to appear or answer, defendants were required to demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]). We find that defendants established a reasonable excuse for their default, as defendants were awaiting a decision on a court-ordered framed issue hearing to determine their insurer's obligation to defend. Moreover, there appears to be an issue of fact regarding, among other things, whether defendants were responsible for causing the accident (see Hernandez v Mueses, 20 Misc 3d 132[A], 2008 NY Slip Op 51454[U] [App Term, 2d & 11th Jud Dists 2008]). In view of the foregoing, plaintiff's motion for entry of a default judgment was properly denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

Decision Date: December 05, 2011 b

20111205

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