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Victoria Rodriguez and Lissette Rodriguez, Appellants v. Luis A. Paguay

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


May 11, 2012

VICTORIA RODRIGUEZ AND LISSETTE RODRIGUEZ, APPELLANTS,
v.
LUIS A. PAGUAY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 26, 2010.

Rodriguez v Paguay

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2012

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

The order granted defendant's motion to vacate a default judgment in favor of plaintiff Victoria Rodriguez.

ORDERED that the so much of the appeal as is by plaintiff Lissette Rodriguez is dismissed as she is not aggrieved by the order (see CPLR 5511); and it is further, ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment in favor of Victoria Rodriguez is denied.

Plaintiffs commenced the underlying action to recover damages for personal injuries sustained in a motor vehicle accident. Defendant did not interpose an answer and, following an inquest, a default judgment was entered in favor of plaintiff Victoria Rodriguez. Subsequently, defendant moved to vacate the default judgment. Plaintiff Victoria Rodriguez opposed defendant's motion, which the Civil Court granted by order entered on April 26, 2010.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Eugene v Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041 [2011]; Katz v Marra, 74 AD3d 888 [2010]). Defendant's proffered excuses for his default, that he did not know "what [the summons] meant," that he believed it was "a report from an accident" and that he "didn't know what action to take" are not reasonable (see U.S. Bank N.A. v Slavinski, 78 AD3d 1167 [2010]; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822 [2010]; Dorrer v Berry, 37 AD3d 519 [2007]). As defendant failed to establish a reasonable excuse, we do not consider whether he established the existence of a meritorious defense (see Dorrer v Berry, 37 AD3d at 519, citing Hegarty v Ballee, 18 AD3d 706, 707 [2005]; State Farm Mut. Auto. Ins. Co. v Cyriaque, 22 Misc 3d 137[A], 2009 NY Slip Op 50334[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment in favor of plaintiff Victoria Rodriguez is denied.

Weston, J.P., Pesce and Rios, JJ., concur. Decision Date: May 11, 2012

20120511

© 1992-2012 VersusLaw Inc.



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