Hernandez v Mueses

[*1] Hernandez v Mueses 2008 NY Slip Op 51454(U) [20 Misc 3d 132(A)] Decided on July 8, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-978 K C.

David J. Hernandez, Appellant,

against

Gus Mueses d/b/a G & I Auto Sales, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered April 26, 2007. The order, insofar as appealed from, upon granting plaintiff's motion for reargument, adhered to the court's prior order, entered February 22, 2007, denying plaintiff's motion for entry of a default judgment.

Order, insofar as appealed from, affirmed without costs.

In this action for breach of contract and breach of warranty under the "Used Car Lemon Law" (General Business Law § 198-b), plaintiff moved for leave to enter a default judgment against defendant, after defendant failed to appear or answer the complaint. Defendant opposed the motion, contending that the default should be excused because he had been involved in ongoing settlement negotiations with plaintiff. He also claimed that he had a meritorious defense in that the vehicle in question had been sold to plaintiff with salvage title, which, inter alia, exempted it from the provisions of the "Used Car Lemon Law." The court denied plaintiff's motion, and plaintiff subsequently moved for reargument, based upon defendant's alleged failure to demonstrate a meritorious defense. In support of his argument, plaintiff referred to a Retail Certificate of Sale (MV-50) for the motor vehicle in question, which indicated that the vehicle was sold as used, not salvage. The court granted reargument and, following oral argument, adhered to its original determination. Plaintiff appeals, based upon defendant's failure to demonstrate a meritorious defense.

In order to avoid entry of a default judgment upon its failure to appear or answer, defendant was required to demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Juseinoski v Board of Educ. of City of N.Y.,15 AD3d 353 [2005]). Plaintiff does not, on appeal, [*2]take issue with defendant's contention that he offered a reasonable excuse for the default.

Although plaintiff argues that defendant did not establish a meritorious defense, in our opinion, defendant made a sufficient showing of the possibility of a meritorious defense (see e.g. M.S. Hi-Tech, Inc. v Thompson, 23 AD3d 442 [2005]). Where, as here, there appears to be an issue of fact as to whether the vehicle in question was represented to be a used or salvage vehicle, resolution of such issue should not be determined on the instant motion and is premature at this juncture (see Bergen v 791 Park Avenue Corp., 162 AD2d 330 [1990]; see also Estate of Witzigman v Drew, 48 AD3d 1172 [2008]).

Furthermore, in light of the relative brevity of the delay, the lack of prejudice to plaintiff from the delay, and the strong public policy in favor of resolution of actions on their merits (see e.g. Nickell v Pathmark Stores, Inc., 44 AD3d 631 [2007]; A & C Constr. Inc. of New York v Flanagan, 34 AD3d 510 [2006]; Sequoia Constr. Corp. v Hunt, 78 AD2d 695 [1980]), in our opinion, the court below did not improvidently exercise its discretion in denying plaintiff's motion for leave to enter a default judgment.

Golia, J.P., and Steinhardt, J., concur.

Rios, J., taking no part.
Decision Date: July 8, 2008