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Allstate Insurance Company As Subrogee of Joon Nam Kim and Kyu Nam Chae v. Alicia A. Jackson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

ALLSTATE INSURANCE COMPANY AS SUBROGEE OF JOON NAM KIM AND KYU NAM CHAE,
APPELLANT,
v.
ALICIA A. JACKSON,
RESPONDENT,
AND KEVIN D. HUDSON,
DEFENDANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 28, 2010.

Allstate Ins. Co. v Jackson

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This opinion is uncorrected and will not be published in the printed Official Reports.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

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

The order granted the motion of defendant Alicia A. Jackson to vacate a default judgment insofar as entered against her.

ORDERED that the order is reversed, without costs, and defendant Alicia A. Jackson's motion to vacate the default judgment insofar as entered against her is denied.

Allstate Insurance Company, as subrogee of Joon Nam Kim and Kyu Nam Chae, brought this action against Alicia A. Jackson and Kevin D. Hudson, respectively the alleged owner and operator of a vehicle which, plaintiff claimed, was negligently operated, causing plaintiff's subrogors to sustain serious injuries in an accident on October 17, 2006. As a result of the accident, plaintiff had to pay its subrogors for uninsured and no-fault benefits. After a default judgment was entered against defendant Hudson for failure to appear or answer, and against defendant Jackson for failure to appear at trial, Jackson moved, pro se, to vacate the default judgment insofar as entered against her. In her moving papers, Jackson asserted that she had a good defense because she "was not driving the car" at the time of the accident. The Civil Court granted Jackson's motion.

A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and that she has 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]; Codoner v Bobby's Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Vehicle and Traffic Law § 388 places responsibility for harm resulting from the operation of a motor vehicle on the owner of the vehicle. Although the Court of Appeals has interpreted the statute as creating a rebuttable presumption that the driver of the vehicle operated it with the permission of the owner (Murdza v Zimmerman, 99 NY2d 375, 379-380 [2003]), Jackson failed to offer any evidence to rebut the presumption that Hudson drove the vehicle with her consent. Jackson's mere assertion that she was not driving the vehicle at the time of the accident did not constitute a meritorious defense to the action (Traore v Nelson, 277 AD2d 443 [2000]). In view of the foregoing, we need not reach the issue of whether Jackson offered a reasonable excuse for her default. Accordingly, the order is reversed and defendant Jackson's motion to vacate the default judgment insofar as entered against her is denied.

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

Decision Date: December 23, 2011

20111223

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