First Trenton Indem. Co. v Blackwell

[*1] First Trenton Indem. Co. v Blackwell 2010 NY Slip Op 51352(U) [28 Misc 3d 134(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1008 K C.

First Trenton Indemnity Company as Subrogee of HAROLD GILL, Respondent,

against

Kenneth L. Blackwell, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 24, 2009. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff, as subrogee, commenced this action to recover the sum of $5,437.88 for damages incurred by its insured as the result of a collision between a vehicle owned by its insured and a vehicle operated by defendant. Defendant failed to appear or answer, and a default judgment in the sum of $6,652.19 was entered against him in May 2008. In April 2009, defendant moved to vacate the default judgment. By order entered April 24, 2009, the Civil Court denied the motion, finding that defendant had not demonstrated a meritorious defense to the action. The instant appeal by defendant ensued.

It is well settled that a defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A meritorious defense to the action must also be shown to exist where a defendant moves to vacate a default judgment pursuant to CPLR 317.

Inasmuch as the arguments defendant made in his motion papers in support of his meritorious defense conflict with those asserted during his oral argument of the motion, the Civil Court properly determined that he failed to show a meritorious defense. Consequently, defendant's motion to vacate the default judgment was properly denied. Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010