State Farm Mut. Auto. Ins. Co. v Wilson

[*1] State Farm Mut. Auto. Ins. Co. v Wilson 2010 NY Slip Op 51063(U) [27 Misc 3d 143(A)] Decided on June 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2009-1581 S C.

State Farm Mutual Automobile Insurance Company as Subrogree of CHRISTOPHER D. CORSINO, Appellant,

against

Elvira Wilson, Respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated May 14, 2009. The order granted defendant's motion to vacate a default judgment.

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

In this subrogation action, a default judgment was entered in favor of plaintiff. Defendant moved to vacate the default judgment, and the District Court granted the motion upon the consent of the parties. Thereafter, defendant failed to appear for arbitration and a second default judgment was entered against her. Defendant moved to vacate the default judgment, and the District Court granted defendant's motion on condition that defendant pay plaintiff the sum of $75. After defendant failed to appear again for arbitration, a third default judgment was entered against her. Defendant moved to vacate the default judgment, and the District Court denied defendant's motion. Thereafter, defendant again moved to vacate the default judgment, and the District Court granted defendant's motion on condition that defendant pay plaintiff the sum of $75. The instant appeal by plaintiff ensued.

At the outset, we note that the order appealed from determined a motion by defendant which, in effect, sought leave to renew her prior motion without presenting a reasonable justification for her failure to present the new facts on the prior motion (see CPLR 2221 [e] [3]).

A party seeking to vacate a default judgment on the ground of excusable default must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; see also Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). While the determination of what constitutes [*2]a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]; Bergdorf Goodman Inc. v Hillard, 1 Misc 3d 127[A], 2003 NY Slip Op 51544[U] [App Term, 2d & 11th Jud Dists 2003]), reversal is warranted where the motion court has improvidently exercised its discretion (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]).

In the instant case, defendant's consistent and repeated defaults demonstrated a pattern of neglect, and the default should not be excused. Defendant made two motions to vacate the most recent default judgment. In the first motion, she stated, as her reasonable excuse, that she was sick on the day that she was supposed to appear in court. In the second motion, she stated, as her reasonable excuse, that she never received notice of the court date. Furthermore, defendant did not establish a meritorious defense to the action since she failed to make any showing that she was not responsible for the motor vehicle accident (see State Farm Ins. Co. v Champion Furniture, Inc., 22 Misc 3d 134[A], 2009 NY Slip Op 50238[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, we find that the District Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment.

Accordingly, the order is reversed, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 11, 2010