| Rauls v DirecTV, Inc. |
| 2009 NY Slip Op 02056 [60 AD3d 1337] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Brian Rauls, Respondent, v DirecTV, Inc.,Appellant. |
—[*1] Law Office of Kenneth P. Bernas, West Seneca (Kenneth P. Bernas of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredApril 29, 2008. The order, insofar as appealed from, denied in part defendant's motion to vacatea default judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety, the judgment entered November 27, 2007is vacated in its entirety, and defendant is granted 20 days from service of the order of this Courtwith notice of entry to serve and file an answer.
Memorandum: Defendant contends on appeal that Supreme Court erred in denying that partof its motion pursuant to CPLR 5015 (a) (1) seeking, inter alia, to vacate the default judgmententered against it with respect to the Labor Law § 240 claim. We agree. A defendantseeking to vacate a default judgment on the ground of excusable default "is required to establishboth a reasonable excuse for the default and the existence of a meritorious defense" (Genesee Mgt. v Barrette, 4 AD3d874, 875 [2004]; see CPLR 5015 [a] [1]). We note at the outset with respect todefendant's reasonable excuse for the default that the court granted those parts of defendant'smotion concerning vacatur of the default judgment with respect to other claims. We thusconclude that the court thereby implicitly determined that defendant's same excuse for thedefault is equally applicable with respect to the Labor Law § 240 (1) claim and thus isequally reasonable.
We agree with defendant, however, that the court erred in determining that defendant failedto establish that it has a meritorious defense to the Labor Law § 240 claim. To be liableunder Labor Law § 240 as a general contractor, defendant must have been "responsible forthe coordination and execution of all the work at the worksite" (Feltt v Owens, 247AD2d 689, 691 [1998]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 316[1981]). Here, defendant submitted evidence in support of its motion establishing that plaintiff'semployer was an independent contractor with full control over the installation of defendant'ssatellite system equipment. We thus conclude that defendant raised a meritorious defense to theaction, i.e., that it was not acting [*2]as a general contractor at thesite where plaintiff was injured (see generally Feltt, 247 AD2d at 691).Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.