| Candela v Johnson |
| 2008 NY Slip Op 01292 [48 AD3d 502] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Russell Candela, Appellant, v Natalie Johnson et al.,Defendants, and Qiaohua Yang, Respondent. |
—[*1] Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated April 20, 2007, which conditionallygranted that branch of the motion of the defendant Qiaohua Yang which was to vacate an orderof the same court dated November 3, 2006, granting the plaintiff's motion for leave to enter adefault judgment upon that defendant's failure to answer the complaint.
Ordered that the order is reversed, on the law, with costs, that branch of the motion of thedefendant Qiaohua Yang which was to vacate the order dated November 3, 2006 is denied, andthe order dated November 3, 2006, is reinstated.
In order to prevail on that branch of her motion which was to vacate her default, thedefendant Qiaohua Yang (hereinafter Yang) was required to demonstrate both a reasonableexcuse for her default and a meritorious defense (see Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]; Matter of Zrake v New York City Dept. ofEduc., 17 AD3d 603 [2005]). Here, Yang's excuse was that the summons and complaintwas served at a former address rather than her current address. However, as the recorddemonstrates that she had failed to notify the Department of Motor Vehicles of her change ofresidence, as required by Vehicle and Traffic Law § 505 (5), she was estopped from raisinga claim of defective service (see Kandovv Gondal, 11 AD3d 516 [2004]; Traore v Nelson, 277 AD2d 443 [2000];McCleaver v VanFossen, 276 AD2d 603 [2000]; Pumarejo-Garcia v McDonough,242 AD2d 374, 375 [1997]). Moreover, the record shows that Yang was notified by herinsurance carrier that she was [*2]a defendant in a lawsuitapproximately six months prior to making the motion to vacate. Under the circumstances, therewas no reasonable excuse to warrant vacating the default. In addition, as the driver of a vehiclewhich struck a stopped vehicle in the rear without coming forth with a non-negligent explanationfor the accident (see Reed v New York City Tr. Auth., 299 AD2d 330 [2002];Barberena v Budd Enters., 299 AD2d 305 [2002]; McGregor v Manzo, 295AD2d 487 [2002]), Yang failed to demonstrate the existence of a meritorious defense. Rivera,J.P., Lifson, Ritter and Carni, JJ., concur.