| Wauchope v Williams |
| 2010 NY Slip Op 02132 [71 AD3d 876] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Sheldon Wauchope, Appellant, v Dexter Williams,Respondent. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Gilbert J. Hardy ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated July 23, 2009, which granted thedefendant's motion pursuant to CPLR 5015 (a) (1) to vacate a clerk's judgment of the same courtentered July 7, 2008, which, upon an order dated March 3, 2008, granting the plaintiff'sunopposed motion for leave to enter judgment on the issue of liability upon the defendant'sdefault in appearing or answering the complaint, and, after an inquest on the issue of damages,was in favor of the plaintiff and against him in the principal sum of $50,000.
Ordered that the order dated July 23, 2009, is reversed, on the law, with costs, thedefendant's motion pursuant to CPLR 5015 (a) (1) to vacate the judgment is denied, and thejudgment entered July 7, 2008, is reinstated.
A party seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) mustdemonstrate both a reasonable excuse for the default and the existence of a meritorious defense(see Velasquez v Gallelli, 44 AD3d934, 935 [2007]; Choudhry v Edward, 300 AD2d 529 [2002]). Here, the defendantattempted to excuse his default by asserting that he was served with the summons and complaintat an address where he no longer resided. However, the defendant is estopped from challengingthe propriety of service, as he did not notify the Commissioner of the Department of MotorVehicles of his change in address, which allegedly occurred three years prior to the subjectaccident, in violation of Vehicle and Traffic Law § 505 (5) (see Walker v Reyes, 59 AD3d 436[2009]; Velasquez v Gallelli, 44 AD3d at 935). Further, the defendant affirmativelymisrepresented to the police and the plaintiff that the address on his driver's license was correct(see Kramer v Ryder Truck Rental, 112 AD2d 194, 196 [1985]). Since the defendantfailed to demonstrate a reasonable excuse for his default, his motion to vacate the judgmentpursuant to CPLR 5015 (a) (1) should have been denied.
Although the defendant's motion was made solely pursuant to CPLR 5015 (a) (1), the [*2]motion may be treated also as one made pursuant to CPLR 317(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Gonzalez v City of New York, 65AD3d 569, 570 [2009]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184AD2d 497 [1992]). Nevertheless, the defendant's affirmative misrepresentation as to his correctaddress at the time of the accident precludes relief under this section (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143). Accordingly, the Supreme Courterred in granting the defendant's motion to vacate the judgment.
The defendant's remaining contention is without merit. Skelos, J.P., Covello, Eng, Chambersand Sgroi, JJ., concur.