Prescod v O'Brien

Prescod v O'Brien 2009 NY Slip Op 08482 [67 AD3d 545] November 19, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Henderson J. Prescod, Appellant,
v
Betty Leggiero O'Brien, Respondent.

—[*1] Robert I. Gruber, New York, for appellant.

Eisenberg & Kirsch, Liberty (Michael D. Wolff of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 1, 2008, which, in an action for personal injuries sustained in a rear-end collision, granted defendant's decedent's motion to vacate an order, entered after inquest, finding that plaintiff sustained a serious injury and directing entry of a judgment awarding plaintiff damages of $195,000, and vacated the finding of serious injury and the award of damages made after the inquest but not the finding of fault necessarily made in the order that directed the inquest, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 4, 2008, which granted the same relief upon condition that defendant's decedent serve and file a written withdrawal of the disclaimer of coverage by his insurance carrier, unanimously dismissed, without costs, as superseded by the appeal from the August 1, 2008 order.

The motion court correctly found that while defendant's decedent offered no evidence on the issue of fault, he did show a meritorious defense on the issue of serious injury, and properly vacated his default upon a showing that his many illnesses and disabilities rendered his failure to appear excusable (CPLR 5015 [a] [1]). We have considered plaintiff's other arguments and find them unavailing. Concur—Tom, J.P., Friedman, Moskowitz, Freedman and Abdus-Salaam, JJ.