Chierchio v Phoenix Sound, Inc.

[*1] Chierchio v Phoenix Sound, Inc. 2006 NY Slip Op 50662(U) [11 Misc 3d 1082(A)] Decided on April 18, 2006 Supreme Court, Richmond County Aliotta, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2006
Supreme Court, Richmond County

Vincent Chierchio, Petitioner(s)/Plaintiff(s),

against

Phoenix Sound, Inc., d/b/a the Sound Factory, ROBERT FUCCI AND MARC MURPHY, Respondent(s)/Defendant(s).



12116/2002

Thomas P. Aliotta, J.

Defendant, Marc Murphy, moves for an Order vacating the Judgment of October 26, 2005 against defendant Mark Murphy pursuant to CPLR 5105(a)(1) and, upon such vacatur, allowing the defendant to defend the within action on the merits and denying plaintiff's motion for a default.

Plaintiff opposes said motion.

This litigation stems from an incident whereby it is alleged by plaintiff that he was brutally assaulted, beaten and repeatedly kicked by defendants Fucci and Murphy on May 11, 2002. He brings this action in assault/intentional tort. Defendant Fucci has settled with the [*2]plaintiff. Plaintiff claims that defendant Murphy failed to interpose an Answer within 30 days after service of the Summons and Verified Complaint. His Answer was served some time after November 27, 2002, some four months late. Plaintiff moved for a default judgment on November 5, 2002 and on December 16, 2002 defendant Murphy was found liable in default. On December 5, 2005 an inquest was held and judgment was awarded against Murphy in the amount of $75,000.00.

Murphy contends that at the time of service of the Summons and Verified Complaint he was under 18 years of age and away at school. He claims that he expected that Allstate would be responsible for his defense and that after they disclaimed coverage he informed plaintiff's counsel that he was having difficulty obtaining an attorney on his own. He argues that plaintiff's counsel was already in receipt of his Answer when the default motion was heard and that the Answer was not rejected until following the decision on the default motion. Being pro se, he believed that notification to the Court of his inability to attend on the return date of the default motion because of his school schedule was sufficient to adjourn it. He believes that he has a defense to plaintiff's claims and that he has not had a fair and full opportunity to defend himself.

CPLR 5105(a)(1) allows a court to relieve a party from a judgment upon the ground of excusable default if such motion is made within one year after service of a copy of the judgment, with written notice of its entry upon the moving party. Defendant here received a copy of the Judgment on November 20, 2005 and, therefore, he is well within the time frame to move pursuant to CPLR 5015(a)(1). Where a party has established a meritorious defense and a reasonable excuse for delay in answering, the default may be vacated in accordance with applicable New York State case law (Fidelity & Deposit Co. Of Maryland v Arthur Andersen & Co., 60NY2d693). The question of reasonable excuse for a default is within the discretion of the trial court (Ruppell v Hair Plus Beauty, Inc., 288AD2d205).

Applying these standards to the case at bar, this Court determines that the default judgment herein is vacated. This Court finds, in its discretion, that the intervening facts which affected defendant Murphy's ability to answer, defend himself on the merits and ability to oppose the default judgment constitute a reasonable excuse for his delay. The intervening events consisted of defendant Murphy's attaining age 18, the disclaimer of coverage and representation by the insurance company and being away at school. This Court finds that each of these events affected defendant's ability to

answer timely and, in the interests of justice, the default herein is vacated. Defendant is directed to serve his Answer within 30 days of the date of this Order.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify both sides of this Decision/Order.

Dated: APRIL 18, 2006/S/

THOMAS P. ALIOTTA

J.S.C.

APPEARANCES OF COUNSEL

Baron Associates, P.C.

2509 AVENUE U

Brooklyn, NY 11229

Robert G. Schacht, PLLC

1001 CLOVE ROAD

STATEN ISLAND, NY 10301