| Cavagnaro v Frontier Cent. School Dist. |
| 2005 NYSlipOp 03459 |
| April 29, 2005 |
| Appellate Division, Fourth Department |
| Matthew A. Cavagnaro, Appellant, v Frontier Central School District, Defendant, and Christopher Schurr, Respondent. |
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Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered April 6, 2004. The order granted the motion of defendant Christopher Schurr to vacate the default judgment entered against him in a personal injury action.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: By his complaint in this action, plaintiff seeks damages for injuries allegedly sustained during an interscholastic hockey game. Plaintiff allegedly was injured as a result of contact with Christopher Schurr (defendant), an opposing player. Supreme Court properly granted defendant's motion to vacate the default judgment previously entered based on defendant's failure to answer the complaint. In support of his motion, defendant established that his default resulted from the mistaken belief of defendant and his mother that defendant Frontier Central School District would be protecting defendant's legal interests. In view of the unintentional nature of the default, the reasonable nature of the excuse, the demonstrated merit of the defense, and the judicial preference for resolving cases on their merits, we conclude that the court did not abuse its discretion in vacating the default judgment (see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hayes v R.S. Maher & Son, 303 AD2d 1018 [2003]; Massachusetts Asset Fin. Corp. v DiLaura, 299 AD2d 948, 948-949 [2002]; Mayville v Wal-Mart Stores, 273 AD2d 944, 945 [2000]). Present—Green, J.P., Hurlbutt, Kehoe, Smith and Hayes, JJ.