| Gerdes v Canales |
| 2010 NY Slip Op 05358 [74 AD3d 1017] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Sandra Gerdes, Respondent, v Luz Canales et al.,Appellants, et al., Defendants. |
—[*1] Bergman, Bergman, Goldberg & Lamonsoff, LLP (Pollack, Pollack, Isaac & De Cicco, NewYork, N.Y. [Brian J. Isaac], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Luz Canales and ActionAuto Leasing Corporation appeal from an order of the Supreme Court, Queens County(Schulman, J.), dated August 8, 2008, which denied their motion to vacate a judgment of thesame court entered September 24, 2007, upon their default in appearing and answering thecomplaint and after an inquest on the issue of damages, in favor of the plaintiff and against themin the principal sum of $3,513,853.80.
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,with costs, the motion of the defendants Luz Canales and Action Auto Leasing Corporation tovacate the judgment is granted, the answer annexed to the motion papers is deemed served uponthe plaintiff, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings.
A defendant seeking to vacate a default in appearing and answering on the ground ofexcusable neglect must show both a reasonable excuse for the default and the existence of apotentially meritorious defense (see CPLR 5015 [a] [1]; Perfect Care, Inc. v Ultracare Supplies,Inc., 71 AD3d 752 [2010]; Rothstein v Collazo, 65 AD3d 1213 [2009]; Zimet v Bufano, 65 AD3d 1037[2009]; Westchester Med. Ctr. vHartford Cas. Ins. Co., 58 AD3d 832 [2009]). "[A]lthough the decision whether tovacate a default judgment rests within the sound discretion of the trial court, it is equally truethat a disposition on the merits is favored" (Wilcox v U-Haul Co., 256 AD2d 973, 974[1998], quoting Hann v Morrison, 247 AD2d 706, 707 [1998] [internal quotation marksomitted]; see Wiesel v Friends ExhaustSys., Inc., 71 AD3d 1006 [2010]; Lawrence v Palmer, 59 AD3d 394 [2009]; Evolution Impressions, Inc. vLewandowski, 59 AD3d 1039, 1040 [2009]; Moore v Day, 55 AD3d 803 [2008]; Harcztark v Drive Variety, Inc., 21AD3d 876, 877 [2005]; Bunch vDollar Budget, Inc., 12 AD3d 391 [2004]; Martin v Pitcher, 243 AD2d 1023[1997]).
Here, the appellants offered a reasonable excuse for their default by establishing that it wascaused by a good faith belief that their legal interests were being adequately protected by theinsurance company that had arranged for their defense in a related action (see EvolutionImpressions, [*2]Inc. v Lewandowski, 59 AD3d at 1040; see also HSBC Bank USA N.A. v Nuteh72 Realty Corp., 70 AD3d 998, 999 [2010]; Rothstein v Collazo, 65 AD3d 1213 [2009]; Zimet v Bufano, 65 AD3d 1037[2009]; Westchester Med. Ctr. vHartford Cas. Ins. Co., 58 AD3d 832 [2009]). Furthermore, the appellants establishedthat they possessed a potentially meritorious defense to this action, which occurred when theirvehicle was struck in the rear by the plaintiff's vehicle (see Franco v Breceus, 70 AD3d 767, 768 [2010]; Staton v Ilic, 69 AD3d 606, 607[2010]; Mallen v Su, 67 AD3d974 [2009]; Zdenek v SafetyConsultants, Inc., 63 AD3d 918 [2009]; Ramirez v Konstanzer, 61 AD3d 837 [2009]). Under thesecircumstances, the appellants' motion to vacate the judgment entered against them upon theirdefault in appearing and answering should have been granted, and the answer annexed to theirmotion deemed served on the plaintiff. Fisher, J.P., Angiolillo, Eng and Lott, JJ., concur.