Disla v Cleto

[*1] Disla v Cleto 2005 NY Slip Op 50237(U) Decided on March 1, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-559 Q C

Martin Reynoso Disla, Appellant,

against

Miguel A. Cleto, Respondent, -and- ROBERTO C. VERAS, Defendant.

Appeal by plaintiff from an order of the Civil Court, Queens County (K. Kerrigan, J.), entered on February 17, 2004, which granted defendant Miguel A. Cleto's motion to vacate a default judgment and dismiss the action against him.

Order unanimously reversed without costs, defendant Cleto's motion to vacate the default judgment and dismiss the action as against him denied and default judgment reinstated.

In this action to recover for personal injuries and property damage sustained in an automobile accident, defendant Cleto failed to demonstrate a reasonable excuse for defaulting in appearing at trial as required by CPLR 5015 so as to warrant vacatur of the default judgment (see Putney v Pearlman, 203 AD2d 333 [1994]). Defendant Cleto never offered an excuse as to why he failed to appear at trial. Rather, he argued that he never received the summons and complaint. Yet, the record contains his verified answer, dated January 23, 2002, which was interposed in person after he was served on January 21, 2002 pursuant to CPLR 308 (2). Moreover, defendant Cleto's answer did not assert a lack of personal jurisdiction. In view of the foregoing, the motion to vacate the default judgment and dismiss the action should not have been granted.
Decision Date: March 01, 2005