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Allstate Insurance Company, As Subrogee of Prymas Roofing & Siding, Appellant v. Ysac Corp.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 10, 2012

ALLSTATE INSURANCE COMPANY, AS SUBROGEE OF PRYMAS ROOFING & SIDING, APPELLANT, --
v.
YSAC CORP., DEFENDANT, -AND- CHEON JAE CHO, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered November 29, 2010.

Allstate Ins. Co. v Ysac Corp.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2012

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

The order granted defendant Cheon Jae Cho's motion to vacate a default judgment insofar as entered against him.

ORDERED that the order is reversed, without costs, and defendant Cheon Jae Cho's motion to vacate a default judgment insofar as entered against him is denied.

In this subrogation action, a default judgment was entered against defendants. Cheon Jae Cho (defendant) moved to vacate the default judgment insofar as entered against him, and the Civil Court granted the motion.

A defendant seeking to vacate a default judgment 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 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). Even assuming that defendant demonstrated a reasonable excuse for his default, in asserting that he did not receive any paperwork from the court (see State Farm Fire & Cas. Co. v MD Servs. of NY, Inc., 26 Misc 3d 136[A], 2010 NY Slip Op 50162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), he did not demonstrate that he had a meritorious defense to the action, since 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, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment insofar as entered against him.

Accordingly, the order is reversed, defendant's motion to vacate the default judgment insofar as entered against him is denied, and the default judgment is reinstated.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: April 10, 2012

20120410

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