Lowney v Arce

[*1] Lowney v Arce 2016 NY Slip Op 50697(U) Decided on April 25, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., WESTON and SOLOMON, JJ.
2014-1909 RI C

Michael Lowney and RUTH LOWNEY, Respondents,

against

Lenore Arce, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered April 24, 2014. The order denied defendant's motion to open her default.

ORDERED that the order is reversed, without costs, and defendant's motion to open her default is granted.

In this action, which was commenced in Supreme Court and removed to Civil Court pursuant to CPLR 325 (d), plaintiffs' amended complaint seeks to recover damages for, among other things, libel. Defendant denied the allegations of the complaint and appeared in court on a number of occasions but thereafter defaulted in appearing, following which an inquest was held and plaintiffs were awarded the principal sum of $124,720. Defendant subsequently moved to open her default, pursuant to CPLR 5015 (a) (1), which motion was denied by the Civil Court.

It is well settled that a party seeking to open its default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, in support of her motion, defendant explained that she had failed to appear in court because she had had a severe nose bleed. As a meritorious defense, defendant stated that the assertions that she had made about plaintiff Michael Lowney, which assertions were the basis for plaintiffs' cause of action for libel, were true. In view of the foregoing, and since truth is a defense to a cause of action for libel (see Goldberg v Levine, 97 AD3d 725 [2012]), we conclude that defendant demonstrated a reasonable excuse for her default and an arguably meritorious defense.

Accordingly, the order is reversed and defendant's motion to open her default is granted.

Elliot, J.P., Weston and Solomon, JJ., concur.

Decision Date: April 25, 2016