July 9, 2009

Allstate Ins. Co. v Romeo (2009 NY Slip Op 51504(U))

Headnote

The relevant facts considered by the court in this case involved a subrogation action by Allstate Insurance Company to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor. Plaintiff had moved for summary judgment, and the motion was granted on default. The defendant then moved to vacate the default judgment, and a default judgment was entered in favor of the plaintiff while the defendant's motion was pending. The main issue decided by the court was whether the defendant had demonstrated a reasonable excuse for his default as well as a meritorious defense to the action. The holding of the court was that the defendant did not provide a meritorious defense to the action and therefore the order of the Civil Court was reversed, and defendant's motion to vacate was denied.

Reported in New York Official Reports at Allstate Ins. Co. v Romeo (2009 NY Slip Op 51504(U))

Allstate Ins. Co. v Romeo (2009 NY Slip Op 51504(U)) [*1]

Allstate Ins. Co. v Romeo

2009 NY Slip Op 51504(U) [24 Misc 3d 136(A)]

Decided on July 9, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1353 Q C.

Allstate Insurance Company a/s/o MIALA LEWIS, Appellant,
against
Edney Romeo, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), dated May 16, 2008. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In this subrogation action to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor, plaintiff moved for summary judgment. By order dated July 6, 2007, the motion was granted on default. In May 2008, defendant moved to vacate the July 6, 2007 order, and plaintiff submitted opposition. On May 6, 2008, while defendant’s motion was pending, a default judgment was entered in favor of plaintiff. By order dated May 16, 2008, the Civil Court vacated the May 6, 2008 judgment and the July 6, 2007 order. The instant appeal by plaintiff ensued.

A defendant seeking to vacate a default must demonstrate a reasonable excuse for his default as well as 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 [1980]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant herein did not provide a meritorious defense to the action inasmuch as he failed to make any showing that he was not responsible for the underlying motor vehicle accident, but merely stated, “I don’t owe any money to defendant.” Accordingly, the order of the Civil Court is reversed and defendant’s motion to vacate is denied (see State Farm Auto. Ins. Co. [*2]v A & G Luxury Limo, Inc., 21 Misc 3d 144[A], 2008 NY Slip Op 52471[U] [App Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009