Allstate Ins. Co. v Musa-Obregon (2008 NY Slip Op 52382(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered May 23, 2007. The order, inter alia, granted the motion by defendant Shauky M. Musa-Obregon to vacate a default judgment entered April 7, 2005 insofar as it was against him.

Order reversed without costs, motion by defendant Shauky M. Musa-Obregon to vacate the default judgment insofar as it was against him denied and default judgment against him reinstated.

Plaintiff commenced this action to recover payments of uninsured and basic no-fault benefits on behalf of its subrogor, who allegedly sustained serious injuries in a motor vehicle accident on October 21, 2002. After plaintiff was awarded a default judgment on April 7, 2005, defendant Shauky M. Musa-Obregon (defendant) moved to vacate so much of the judgment as was against him on the ground that he was not served. The parties entered into a so-ordered stipulation which provided that the default judgment was vacated and defendant’s affidavit in support of his motion would constitute his answer to the complaint. After another default by defendant, an inquest was held and the default judgment was reinstated against him. Defendant moved to vacate the default judgment on the ground of excusable default, submitting in support of his motion an affirmation from his attorney and various exhibits annexed thereto. Plaintiff [*2]opposed the motion, arguing, inter alia, that defendant failed to explain why he did not appear for trial. The court below granted defendant’s motion. Plaintiff’s appeal ensued.

In order to vacate a default judgment under CPLR 5015 (a), the defaulting party must demonstrate a reasonable excuse for his default as well as a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]; Montague v Rivera, 50 AD3d 656 [2008]). In the present case, since defendant’s attorney failed to allege personal knowledge of the facts asserted, his affirmation is of no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant failed to establish a reasonable excuse for his default and his motion to vacate the default judgment should have been denied.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: November 21, 2008