State Farm Ins. Co. v German (2009 NY Slip Op 50335(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered February 14, 2008. The order, insofar as appealed from as limited by the brief, granted defendant George German’s motion to vacate a default judgment as against him.

Order, insofar as appealed from, reversed without costs, defendant George German’s motion to vacate the default judgment as against him denied and default judgment as against George German reinstated.

Plaintiff’s subrogor was a passenger in a motor vehicle which, in 1999, was involved in an accident with a motor vehicle allegedly owned by defendant George German and operated by defendant Manuel C. German. As a result of the accident, plaintiff’s subrogor was injured, and received no-fault benefits from plaintiff in the sum of $14,511.93. Thereafter, plaintiff commenced this subrogation action against defendants. Upon defendants’ default, a judgment in the principal sum of $14,511.93 was entered against them in June of 2001.

In February of 2007, defendant George German (hereinafter defendant) moved to vacate [*2]the default judgment as against him and to restore the action to the calendar. The parties stipulated to vacate the judgment as against him and to permit his affidavit in support of the vacatur motion to serve as his answer. The matter was scheduled for trial, and when defendant failed to appear, the original default judgment against him was reinstated. Defendant moved three more times by order to show cause to vacate the reinstated default judgment as against him. The first time, the motion was marked off the calendar when defendant failed to appear. The second time, the motion was denied based upon defendant’s failure to set forth a meritorious defense. Defendant’s third order to show cause resulted in an order vacating the reinstated judgment as against him, and the matter was restored to the calendar.

A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; see also Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). While the determination of what constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Grutman v Southgate At Bar Harbor Home Owners’ Assn., 207 AD2d 526, 527 [1994]; Bergdorf Goodman Inc. v Hillard, 1 Misc 3d 127[A], 2003 NY Slip Op 51544[U] [App Term, 2d & 11th Jud Dists 2003]), reversal is warranted where the motion court has improvidently exercised its discretion (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Furthermore, where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]). In the instant case, defendant’s consistent and repeated defaults demonstrated a pattern of neglect, and the default should not be excused. We conclude that it was an improvident exercise of discretion for the Civil Court to have granted defendant’s motion to vacate the default judgment as against him.

We note that in view of our finding that defendant failed to establish a
reasonable excuse for the default, it is unnecessary for us to address the issue of whether a meritorious defense was demonstrated.

Accordingly, the order, insofar as appealed from, is reversed, defendant George German’s motion to vacate the default judgment as against him is denied, and the default judgment is reinstated.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 24, 2009