| Hodges v Sidial |
| 2008 NY Slip Op 01502 [48 AD3d 633] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Sheila Hodges, Appellant, v Krishendath Sidial et al.,Respondents. |
—[*1] Martin Silver, P.C., Hauppauge, N.Y. (Richard E. Trachtenberg of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Schulman, J.), dated January 8, 2007, which, inter alia,granted that branch of the defendants' motion which was pursuant to CPLR 5015 to vacate ajudgment of the same court entered against them upon their default in appearing at trial.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering must demonstrate areasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Segovia v Delcon Constr. Corp., 43AD3d 1143, 1144 [2007]; Simpsonv Town of Southampton, 43 AD3d 1033 [2007]). The determination as to whatconstitutes a reasonable excuse lies within the sound discretion of the trial court (see Segovia v Delcon Constr. Corp., 43AD3d 1143, 1144 [2007]; Matter of Gambardella v Ortov Light., 278 AD2d 494,495 [2000]).
Here, an adjourned trial date was set during the pendency of a stay of all proceedings in theaction ordered by the Supreme Court after it granted a motion by the defendants' former counselto be relieved from representing them. The defendants defaulted in appearing on the adjournedtrial date and at a subsequent inquest on damages. The defendants denied having received noticeof the adjourned trial date from either the court or the plaintiff. Further, there is no evidence inthe record [*2]indicating that the defendants were sent any noticeregarding the adjourned trial date (seeBodden v Penn-Attransco Corp., 20 AD3d 334, 335 [2005]). In response to theplaintiff's service upon the defendants of her notice of intent to present a proposed defaultjudgment for settlement (hereinafter the notice of intent), the defendants immediately made theinstant motion. The defendants averred that they were unaware of what had transpired in the caseafter their last appearance until receiving the notice of intent. Notably, correspondence from theplaintiff to the defendants purportedly notifying them of the inquest for damages was not sent tothe address used by the defendants' former counsel for service of his motion to be relieved, whichaddress also was used by the plaintiff for service of the notice of intent.
Under the particular circumstances of this case, the defendants demonstrated a reasonableexcuse for their default in appearing. The defendants also demonstrated the existence of apotentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67NY2d 138, 142 [1986]; Carnazza vShoprite of Staten Is., 12 AD3d 393, 394 [2004]; Becker v University Physicians ofBrooklyn, 307 AD2d 243, 244 [2003]; see generally Powell v Pasqualino, 40 AD3d 725 [2007]). Thus, theSupreme Court providently exercised its discretion in granting that branch of the defendants'motion which was pursuant to CPLR 5015 to vacate the judgment entered against them upontheir default in appearing at trial (seeSavino v "ABC Corp.", 44 AD3d 1026 [2007]; Ray Realty Fulton, Inc. v Lee, 7 AD3d 772 [2004]).
The defendants' remaining contentions are not properly before this Court. Mastro, J.P.,Skelos, Florio and Dickerson, JJ., concur.