Teachers Fed. Credit Union v Jones

[*1] Teachers Fed. Credit Union v Jones 2009 NY Slip Op 50967(U) [23 Misc 3d 139(A)] Decided on May 12, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-924 S C.

Teachers Federal Credit Union, Respondent,

against

Charles Jones a/k/a CHARLES W. JONES a/k/a WALTER C. JONES, Appellant.

Appeal from an order of the District Court of Suffolk County, Fourth District (Howard M. Bergson, J.), entered April 9, 2008. The order, insofar as appealed from, upon granting so much of a motion by defendant as sought, in effect, reargument, adhered to a prior determination denying defendant's motion to vacate a default judgment.

Order, insofar as appealed from, reversed without costs and, upon reargument, defendant's motion to vacate the default judgment granted.

At the outset, we note that the subject order, though not denominated an order determining a motion for reargument or renewal, should be deemed one that granted reargument to defendant and, upon reargument, adhered to an earlier decision denying defendant's prior motion to vacate a default judgment (see generally Siegel, NY Prac § 254, at 434 [4th ed]). Since the District Court denied defendant's motion to vacate the judgment "for the same reasons set forth in the decision of the Honorable G. Ann Spelman, dated January 17, 2008," it should be inferred that the court considered the instant motion on its merits rather than summarily denying relief. Thus, the subject order should not be deemed one that simply denied reargument, from which no appeal lies (id.).

A defendant seeking to vacate a judgment on the ground of excusable default (CPLR [*2]5015 [a] [1]) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Capital One Bank v Erhabor, 20 Misc 3d 132[A], 2008 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2008]). In the case at bar, defendant made in adequate showing that he had a reasonable excuse for his failure to appear for the September 11, 2006 conference date in view of his position that he never received notice of such adjourned date.

We are also of the opinion that defendant made an adequate showing of the existence of a meritorious defense or partial defense. He asserted that he obtained disability insurance with plaintiff at the inception of the credit card agreement on February 18, 1994, that he became permanently disabled on February 26, 2002 and that plaintiff failed to credit his payments. The record contains a document signed by defendant and attached to the default judgment providing that "Credit Disability Insurance can make the minimum monthly payment on your credit card if you become totally and continuously disabled."

Defendant's claim that he was not served with the summons and complaint should be deemed waived in light of his failure to move pre-answer to dismiss the complaint for lack of personal jurisdiction or to serve an answer raising said claim as a defense and moving within 60 days thereafter for judgment on said ground (see CPLR 3211 [a] [8], [e]).

Accordingly, the order, insofar as appeal from, is reversed and, upon reargument, defendant's motion to vacate the default judgment is granted.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: May 12, 2009