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State Farm Mutual Automobile Insurance Co. As Assignee of Sarah Tineo and Alejandra Cuba, Appellant v. Tonya R. Johnson Bennett

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


April 30, 2013

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. AS ASSIGNEE OF SARAH TINEO AND ALEJANDRA CUBA, APPELLANT, --
v.
TONYA R. JOHNSON BENNETT, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), dated May 3, 2012.

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

Decided on April 30, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

After defendant failed to appear or answer in this subrogation action, a default judgment was entered in favor of plaintiff. The parties subsequently agreed, by so-ordered stipulation, to vacate the default judgment. Upon defendant's failure to appear for trial, the default judgment was reinstated. Almost four years later, defendant moved to vacate the default judgment, and plaintiff opposed the motion. The Civil Court granted defendant's motion, and this appeal by plaintiff ensued.

A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a potentially 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]). In the instant case, defendant stated that she had not received any notification from the court informing her of the trial date, and we note that there is nothing in the record to show that such notification was sent. Such assertion constituted a reasonable excuse for her failure to appear in court on the trial date (see Birky v Katsilogiannis, 37 AD3d 631 [2007]; Vollaro v Bevilacqua, 33 AD3d 910 [2006]). Furthermore, defendant demonstrated that she had a potentially meritorious defense to the action, since she made allegations regarding the facts of the underlying motor vehicle accident which, if true, were sufficient to show that she was not responsible for the accident (cf. 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 public policy favoring resolution of cases on the merits (see Stuart v Kushner, 39 AD3d 535 [2007]; Bell v Toothsavers, Inc., 213 AD2d 199 [1995]), we find that the Civil Court did not improvidently exercise its discretion in granting defendant's motion to vacate the default judgment.

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur. Decision Date: April 30, 2013

20130430

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