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

[*1] State Farm Mut. Auto. Ins. Co. v Missouri 2010 NY Slip Op 51257(U) [28 Misc 3d 130(A)] Decided on July 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-2098 Q C.

State Farm Mutual Automobile Insurance Company as Subrogee of CAROLE TORBINSKI, Appellant,

against

David Missouri, Jr., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered July 24, 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 Civil Court granted the motion upon the consent of the parties. Thereafter, defendant failed to appear for trial, and a second default judgment was entered against him. Defendant moved to vacate this second default judgment, but failed to appear for oral argument on the return date of his motion. As a result, defendant's motion was denied. Defendant again moved to vacate the default judgment, and the Civil Court granted defendant's motion. The instant appeal by plaintiff ensued.

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 (CPLR 5015 [a] [1]; see 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 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]). Furthermore, where the [*2]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 case at bar, defendant's repeated defaults demonstrated a pattern of neglect, which should not be excused. Consequently, we conclude that it was an improvident exercise of discretion for the Civil Court to have granted defendant's motion to vacate the default judgment. Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: July 16, 2010