New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
March 6, 2012
CONTINENTAL INSURANCE COMPANY AS SUBROGEE OF VIRGINIA A. ANDREWS,
AND PAULA MCCABE,
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated December 8, 2010.
Continental Ins. Co. v Bostwick
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
The order, insofar as appealed from, denied defendant Paula McCabe's motion to vacate so much of a default judgment as was entered against her.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this subrogation action to recover the sum of $7,878.48 for damages incurred by its insured as a result of a collision between its insured's vehicle and a vehicle owned by defendant John Bostwick and operated by defendant Paula McCabe. Only defendant McCabe interposed an answer. Both defendants subsequently failed to appear for a scheduled court date on April 3, 2001, and, following an inquest, a default judgment in favor of plaintiff was entered against them in August 2001. In September 2010, each defendant separately moved to vacate so much of the default judgment as was entered against them. By order dated December 8, 2010, insofar as appealed from, the District Court denied defendant McCabe's motion to vacate so much of the default judgment as was entered against her.
A defendant seeking to vacate a default judgment based on excusable default, pursuant to CPLR 5015 (a) (1), must demonstrate a reasonable excuse for failing to appear and the existence of a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 ; Putney v Pearlman, 203 AD2d 333 ). Defendant McCabe's assertion that she was unable to appear in court on April 3, 2001 because she had moved out of the state is not a reasonable excuse for her failure to appear, particularly since she did not support her statement with any documentary proof and apparently failed to notify the court or plaintiff's counsel that she would be unable to appear. Moreover, in her brief on appeal, she states that she moved out of state in May 2001, which does not explain her failure to appear for a conference on April 3, 2001. Furthermore, she did not demonstrate that she had a meritorious defense to the action, since she failed to make any showing that she was not responsible for the underlying motor vehicle accident (see State Farm Mut. Auto. Ins. Co. v Wilson, 27 Misc 3d 143[A], 2010 NY Slip Op 51063[U] [App Term, 9th & 10th Jud Dists 2010]; 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]).
In view of the foregoing, we find that the District Court did not improvidently exercise its discretion in denying defendant McCabe's motion to vacate so much of the default judgment as was entered against her. Accordingly, the order, insofar as appealed from, is affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: March 06, 2012
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