Allstate Ins. Co. v Coachman

[*1] Allstate Ins. Co. v Coachman 2010 NY Slip Op 52017(U) [29 Misc 3d 136(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1709 Q C.

Allstate Insurance Company as Subrogee of VANESSA DUKES, ERICK DUKES, ALBERT MAXEY and DWAYNE MAXEY, Appellant,

against

Essie L. Coachman, Defendant, -and- LISA A. HYACINTHE Also Known as LISA A. ROWE, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ingrid Joseph, J.), entered April 14, 2009. The order granted a motion by defendant Lisa A. Hyacinthe also known as Lisa A. Rowe to vacate a default judgment insofar as it was against her.

ORDERED that the order is reversed, without costs, and the motion by defendant Lisa A. Hyacinthe also known as Lisa A. Rowe to vacate the default judgment, insofar as it was against her, is denied.

After the parties stipulated, in this subrogation action, to vacate a default judgment entered on September 27, 2004, defendants failed to appear for trial, and a second default judgment was entered against them on October 16, 2008. Defendant Lisa A. Hyacinthe also known as Lisa A. Rowe (Rowe) subsequently moved to vacate the default judgment insofar as it was against her. She alleged in an affidavit that the case had been marked off the calendar on May 16, 2007 and she was never thereafter notified by her attorney regarding the status of the case. Her attorney submitted an affirmation indicating that he had never seen the order of the court granting plaintiff's motion to file a notice of trial and that had he received such notice, he would have appeared to defend this case. The Civil Court granted Rowe's motion to vacate the [*2]default judgment insofar as it was against her.

A party seeking to vacate a default judgment entered based on her nonappearance at trial must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). While Rowe may have demonstrated a reasonable excuse for her default (see e.g. Birky v Katsilogiannis, 37 AD3d 631, 632 [2007]; Vollaro v Bevilacqua, 33 AD3d 910 [2006]; Rahman v Parkin, 25 Misc 3d 130[A], 2009 NY Slip Op 52118[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), she failed to demonstrate a meritorious defense to the action. Thus, it was an improvident exercise of discretion for the Civil Court to grant Rowe's motion to vacate the default judgment insofar as it was against her.

Accordingly, the order granting Rowe's motion to vacate the default judgment, insofar as it was against her, is reversed and the motion is denied.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: November 19, 2010