| Estate of Witzigman v Drew |
| 2008 NY Slip Op 00905 [48 AD3d 1172] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Estate of James J. Witzigman, Deceased, Respondent, v John R.Drew, Appellant. |
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Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), datedOctober 2, 2006. The order, among other things, denied defendant's motion to vacate a defaultjudgment of foreclosure.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted, the judgment entered April 13, 2005 is vacated and the crossmotion is dismissed.
Memorandum: Plaintiff commenced this action seeking to foreclose upon an equitablemortgage encumbering certain real property purchased by defendant from plaintiff's decedent.Supreme Court entered a default judgment of foreclosure and, in light of the "judicial preferencefor resolving cases on their merits" (Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099 [2005]),we agree with defendant under the circumstances of this case that the court erred in denying hismotion to vacate the default judgment. "To obtain relief from a default judgment on the groundof excusable default . . . , a defendant is required to establish both a reasonableexcuse for the default and the existence of a meritorious defense" (Genesee Mgt. v Barrette, 4 AD3d874, 875 [2004]; see CPLR 5015 [a] [1]). " 'The quantum of proof required toprevail [on a motion to vacate a default . . . judgment] is not as great as is requiredto oppose summary judgment' " (Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277, 1277[2007]). Here, defendant presented evidence establishing that plaintiff's attorney assured him thathe did not have to answer the complaint if he provided plaintiff's attorney with receiptsevidencing payment of the underlying debt. Indeed, plaintiff's attorney admitted in his affidavit inopposition to the motion that he received numerous receipts from defendant. In addition,defendant submitted copies of receipts for payments evidencing payment in full. Although inopposition plaintiff raised an issue of fact with respect to the validity of the receipts bysubmitting the affidavit of a handwriting expert who concluded that certain receipts were forged,we conclude that the issue concerning the validity of the receipts should be resolved in the actionrather than on a motion to vacate a default judgment (see Solomon Abrahams, P.C. vPeddlers Pond Holding Corp., 125 AD2d 355, 357 [1986]; General Elec. Credit Corp. vZemrus, 115 AD2d 953 [1985]).
In light of our determination, we need not reach defendant's remaining contentions and themerits of plaintiff's cross motion. Present—Scudder, P.J., Gorski, Lunn, Fahey and Green,JJ.