Thursday, March 5, 2009

Three Defaults and You're Out

State Farm Mut. Auto. Ins. Co. a/s/o Trimble v. Cyriaque

(App. Term, 2nd Dept., decided 2/24/2009)

State Farm commenced this auto property damage subrogation action against the offending vehicles owner and driver. Upon the defendants' default, State Farm discontinued against the driver, and obtained a $8,384.27 judgment against the other vehicle's owner, defendant Gina Cyriaque in May 2004.

In July of 2005, defendant moved to vacate the default judgment and restore the case to the trial calendar. State Farm stipulated to vacate the judgment, and defendant submitted an answer stating that she had insurance at the time of the accident. Ms. Cyriaque failed to appear on the next court date, however, and the original default judgment was reinstated. She again moved to vacate the default judgment, and the parties again stipulated to vacate the judgment. Ms.Cyriaque again failed to appear on the trial date and the default judgment was reinstated for a second time. Defendant again sought vacatur of the reinstated judgment, and over State Farm's opposition this time, Queens Civil vacated the twice reinstated default judgment.

The Appellate Term REVERSED and reinstated the default judgment, holding:
A party seeking to vacate a default judgment must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; see also Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). While the determination of what constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]; Bergdorf Goodman Inc. v Hillard, 1 Misc 3d 127[A], 2003 NY Slip Op 51544[U] [App Term, 2d & 11th Jud Dists 2003]), reversal is warranted where the motion court has improvidently exercised its discretion (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Furthermore, where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]). In the instant case, defendant's consistent and repeated defaults demonstrated a pattern of neglect, and the default should not be excused. We conclude that it was an improvident exercise of discretion for the Civil Court to have granted defendant's motion to vacate the default judgment.
Pattern of neglect. You think? Must be endemic of defendants to auto subrogation claims in Queens Civil. Two defaults in appearance plus three order to show cause applications did not impress the Appellate Term. Vacatur of default judgment reversed. State Farm Ins. Co. a/s/o Taveras v. German, 2009 NYSlipOp 50335(U) (App. Term, 2nd Dept., decided 2/24/2009).

No comments: