State Farm Mut. Auto. Ins. Co. v Corsa Auto Repair

[*1] State Farm Mut. Auto. Ins. Co. v Corsa Auto Repair 2009 NY Slip Op 52128(U) [25 Misc 3d 131(A)] Decided on October 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1838 Q C.

State Farm Mutual Automobile Insurance Company a/s/o ROSE MARIE RASO, Appellant,

against

Corsa Auto Repair, Defendant, -and- ALEKSANDR FOSTIK, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), dated May 23, 2008. The order granted defendant Aleksandr Fostik's motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

In this subrogation action to recover monies plaintiff paid for property damage, defendants failed to timely appear or answer and, in February 2005, a default judgment was entered against them. Pursuant to a stipulation entered into in January 2006, the default judgment was vacated as to defendant Aleksandr Fostik, and Fostik
subsequently served and filed his answer. The case was then adjourned for trial, at which Fostik failed to appear. The default judgment was thereafter reinstated. Fostik subsequently moved to vacate the default judgment, which motion was granted by order dated May 23, 2008. The instant appeal by plaintiff ensued.

Plaintiff's sole contention on appeal is that Fostik failed to demonstrate a reasonable excuse for the default. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in finding that such an excuse was established. Moreover, we note that public policy favors the resolution of cases on the merits (see Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 19, 2009