Breen v Nextcare Plus

[*1] Breen v Nextcare Plus 2010 NY Slip Op 50891(U) [27 Misc 3d 138(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-1529 N C.

Valerie Breen, Respondent,

against

NEXTCARE PLUS, Appellant.

Appeal from an order of the District Court of Nassau County, Second District (Tricia M. Ferrell, J.), entered May 4, 2009. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is reversed without costs and defendant's motion to vacate the default judgment is granted.

In this small claims action, plaintiff seeks to recover the sum of $5,000, representing a portion of the price she paid defendant for the purchase of a motor vehicle which, she claimed, had been salvaged prior to the time of sale. After a default judgment was entered in favor of plaintiff in the principal sum of $3,000, defendant moved to vacate the default judgment. The District Court found that defendant's excuse for defaulting on the motion was reasonable, but it denied the motion on the ground that defendant had failed to establish a meritorious defense to the action.

Upon its motion to vacate the default judgment, defendant was required to demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [i]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The District Court properly found that defendant had established a reasonable excuse for defaulting in this action. Contrary to the District Court's determination, however, we find that defendant also showed a potentially meritorious defense, to wit, that the vehicle sold to plaintiff had not been salvaged [*2]prior to the time it had been sold to plaintiff. As substantial justice was not done between the parties according to the rules and principles of substantive law (see UDCA 1807), the order denying defendant's motion to vacate the default judgment is reversed and defendant's motion is granted.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: May 13, 2010