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State Farm Mutual Automobile Insurance Company As Subrogee of Salvatore Butera, Appellant v. Robert S. Young

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 10, 2012

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF SALVATORE BUTERA, APPELLANT, --
v.
ROBERT S. YOUNG, DEFENDANT, -AND- ROBERT J. YOUNG, RESPONDENT.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated May 12, 2011.

State Farm Mut. Auto. Ins. Co. v Young

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This opinion is uncorrected and will not be published in the printed Official Reports.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: MOLIA, J.P., NICOLAI and LaCAVA, JJ

The order denied plaintiff's motion to vacate an order of the same court dated March 4, 2011 granting defendant Robert J. Young's oral application to open his default and for leave to serve and file an answer.

ORDERED that the order is reversed, without costs, plaintiff's motion to vacate the March 4, 2011 order granting defendant Robert J. Young's oral application to open his default and for leave to serve and file an answer is granted, and defendant Robert J. Young's oral application is denied without prejudice to renewal upon proper motion papers.

On April 8, 2009, plaintiff's insured's motor vehicle was hit in the rear by a motor vehicle allegedly owned and operated by defendants. As a result of the accident, plaintiff paid its insured $2,000 in excess no-fault benefits. Thereafter, plaintiff commenced this subrogation action against defendants. Upon defendants' default in answering or appearing, an inquest was scheduled. Defendant Robert J. Young appeared at the inquest and orally sought to open his default and to serve and file an answer. By order dated March 4, 2011, the District Court granted the oral application, and defendant Robert J. Young filed a verified answer in which he stated that he was the "wrong person." Thereafter, plaintiff moved to vacate the March 4, 2011 order or, in the alternative, for summary judgment. Plaintiff's unopposed motion was denied by the District Court by order dated May 12, 2011, from which plaintiff appeals.

In order to open his default pursuant to CPLR 5501 (a) (1), defendant Robert J. Young was required to establish a reasonable excuse for his default in answering as well as the existence of a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]), and such application should have been supported by motion papers on notice to plaintiff (see CPLR 2214). Consequently, the District Court should not have entertained defendant Robert J. Young's oral application to open his default and to serve and file an answer. Accordingly, the May 12, 2011 order is reversed, plaintiff's motion to vacate the March 4, 2011 order is granted, and defendant Robert J. Young's oral application is denied without prejudice to renewal upon proper motion papers.

Molia, J.P., Nicolai and LaCava, JJ., concur.

Decision

Date: April 10, 2012

20120410

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