| Acker v Van Epps |
| 2007 NY Slip Op 08829 [45 AD3d 1104] |
| November 15, 2007 |
| Appellate Division, Third Department |
| Gail M. Acker et al., Appellants, v GEOFFREY B.Van Epps et al., Respondents. |
—[*1] Iacona, Cambs & Goergen, Liverpool (Nicole M. Marlow of Costello, Cooney & Fearon,P.L.L.C., Albany, of counsel), for respondents.
Peters, J. Appeal from an order of the Supreme Court (Teresi, J.), entered May 3, 2007 inAlbany County, which granted defendants' motion to vacate a default judgment entered againstthem.
On August 16, 2004, plaintiffs allegedly sustained damage to real and personal propertylocated in the Town of Guilderland, Albany County. In December 2006, plaintiffs commencedthe present action against defendant Geoffrey B. Van Epps and defendants Hiawatha Trails GolfCourse, Inc. and Hiawatha Trails, LLC—of which Van Epps is the principal and soleshareholder—by summons and complaint personally served upon Van Epps, claiming thatwater run off from their property caused plaintiffs' property damage. Defendants failed to servean answer or appear in the action and plaintiffs moved for a default judgment. There being noopposition, Supreme Court granted the motion. Thereafter, defendants promptly moved to vacatethe default judgment, proffering the excuse that "the internal operations of the [d]efendants'insurance underwriters failed," and asserting as a defense a claim that weather conditions androad construction caused or contributed to plaintiffs' property damage. Supreme Court granteddefendants' motion and plaintiffs now appeal.
"Vacatur of a default judgment lies within the discretion of the trial court, a determinationthat should not be disturbed unless it reflects an 'improvident exercise of discretion' " (ChaseManhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000], quotingLucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997]; see [*2]Kranenburg v Butwell, 34 AD3d 1005, 1006 [2006]). Inorder to vacate a default judgment pursuant to CPLR 5015 (a) (1), the movant must demonstrateboth a reasonable excuse for the default and a meritorious defense (see Kranenburg vButwell, 34 AD3d at 1006; Chase Manhattan Automotive Fin. Corp. v Allstate Ins.Co., 272 AD2d at 773-774). Here, the record demonstrates that upon receiving the summonsand complaint, Van Epps contacted his insurance agent, who immediately notified defendants'insurance underwriter, Fairway Underwriters, by fax. Van Epps stated that he did not receive anyfurther communication or correspondence concerning the action until he was notified of thedefault judgment against defendants in early March 2007,[FN*] at which time he again contacted his insurance agent who, in turn, directly contacted the insurer,Hanover Insurance Group. By the middle of that month, counsel had been retained for defendantsby Hanover, an answer was prepared and a motion to vacate the default judgment had been filed.Mindful that the delay was brief and that there is no indication of prejudice inuring to plaintiffsor that the default was willful, the record clearly demonstrates that the fault for the failure todefend lies entirely with Fairway Underwriters and we perceive no error in Supreme Court'sconclusion that defendants' excuse was reasonable (see Chase Manhattan Automotive Fin.Corp. v Allstate Ins. Co., 272 AD2d at 774; Hann v Morrison, 247 AD2d 706, 707[1998]; Lucas v United Helpers Cedars Nursing Home, 239 AD2d at 853). Moreover,considering that the Van Epps affidavit and supporting documentary evidence sufficiently makeout the requisite " 'prima facie showing of legal merit' " to defendants' asserted defenses(Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d at 774, quotingDavid Sanders, P.C. v Sanders, Architects, 140 AD2d 787, 789 [1988]), we decline todisturb Supreme Court's order.
Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: We note that the record beforeus contains no evidence of proper notice to defendants of plaintiffs' motion for a defaultjudgment.