| Abel v Estate of Collins |
| 2010 NY Slip Op 04498 [73 AD3d 1423] |
| May 27, 2010 |
| Appellate Division, Third Department |
| David Abel, Appellant, v Estate of Nelson Collins Jr., Deceased, etal., Defendants, and Daniel Collins et al., Respondents. |
—[*1] Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Fitzgerald, J.), entered June 9,2009 in Delaware County, which granted certain defendants' motion to vacate a default judgmententered against them.
Plaintiff entered into an agreement in June 2007 to purchase certain real property located inthe Town of Masonville, Delaware County from defendant Estate of Nelson Collins Jr.(hereinafter the estate). Defendant David Collins, the administrator of the estate, signed theagreement on its behalf. Pursuant to the agreement, plaintiff satisfied more than $6,000 in taxarrears on the property. Delaware County thereafter conveyed the property by quitclaim deed toDavid Collins, both individually and as administrator of the estate, as well as to defendantsDaniel Collins, Diane Vieira, Dorothy Krigger, Kevin Collins and Donna Collins-Smith.
In July 2008, the sale of the property had not been consummated and plaintiff commencedthe underlying action against defendants, asserting breach of contract and unjust enrichment andseeking specific performance of the agreement. Daniel Collins, Diane Vieira, Dorothy Krigger,Kevin Collins and Donna Collins-Smith (hereinafter collectively referred to as [*2]defendants) retained counsel, who did not subsequently file ananswer or a proper notice of appearance. Defendants' counsel did communicate with plaintiff'scounsel and filed a request for judicial intervention in September 2008, but failed to adhere toSupreme Court's instructions regarding the submission of a stipulated scheduling order. InJanuary 2009, plaintiff moved for a default judgment. Defendants' counsel did not oppose themotion, but made an initial request for an extension of time to submit opposition, which wasgranted. After counsel thereafter requested another extension, Supreme Court denied the requestand granted plaintiff's motion for default judgment. Defendants then promptly hired newcounsel, who moved to vacate the default judgment. Supreme Court granted defendants' motionand plaintiff now appeals.
"Vacatur of a default judgment lies within the discretion of the trial court, a determinationthat should not be disturbed unless it reflects an 'improvident exercise of discretion' " (ChaseManhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000], quotingLucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997]). A partyseeking to vacate a judgment of default pursuant to CPLR 5015 (a) (1) must show a reasonableexcuse for the default and the existence of a meritorious defense (see Wade v Village of Whitehall, 46AD3d 1302, 1303 [2007]; Nilt, Inc.v New York State Dept. of Motor Vehicles, 35 AD3d 937, 938 [2006]). Here,defendants' proffered excuse for the default was that they were under the misunderstanding thatcounsel was protecting their interests in this action. The record does reflect that defendantsretained counsel upon receiving the summons, kept in communication with counsel during thependency of the case and, although they were not informed of plaintiff's motion for defaultjudgment, when informed by counsel that a default judgment had been entered against them,they immediately retained new counsel and moved to vacate the judgment. As the recordsupports a finding that defendants did not intend to ignore the claim and were under the beliefthat it was being properly defended by counsel, we conclude that defendants have demonstrateda reasonable excuse for the default (see Steel Krafts Bldg. Materials & Supplies vKomazenski, 252 AD2d 731, 732 [1998]; cf. Fishman v Beach, 246 AD2d 779, 780[1998]). Further, given that the quantum of proof needed to prevail on a CPLR 5015 (a) (1)motion is less than that required when opposing a summary judgment motion (see Dodge v Commander, 18 AD3d943, 945 [2005]), we find that defendants have demonstrated a meritoriousdefense—i.e., their contention that David Collins did not have the authority asadministrator of the estate to unilaterally convey the property at the time of the agreement. Inlight of defendants' demonstration of a reasonable excuse and meritorious defense, as well as noevidence of prejudice to plaintiff, and mindful of the preference that a case be determined on itsmerits (see Kostun v Gower, 61AD3d 1307, 1308 [2009]; Watkins v Clark, 260 AD2d 843, 845 [1999]), SupremeCourt did not abuse its discretion by granting defendants' motion to vacate the default judgment.
Cardona, P.J., Mercure, Peters and Garry, JJ., concur. Ordered that the order is affirmed,with costs.