Mayers v. Bob's Auto Gallery Corp

Mayers v Bob's Auto Gallery Corp (2021 NY Slip Op 50777(U)) [*1] Mayers v Bob's Auto Gallery Corp 2021 NY Slip Op 50777(U) [72 Misc 3d 139(A)] Decided on July 30, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 30, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2020-814 Q C Claire H. Mayers, Appellant, against Bob's Auto Gallery Corp. and Brian Bachan, Respondents. Claire H. Mayers, appellant pro se. Bob's Auto Gallery Corp. and Brian Bachan, respondents pro se (no brief filed). Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), entered October 30, 2019. The order granted defendants' motion to vacate a judgment of that court entered August 7, 2019 upon their failure to appear or answer the complaint and to restore the matter to the trial calendar. ORDERED that the order is reversed, without costs, and defendants' motion to vacate the default judgment entered August 7, 2019 is denied. In March 2019, plaintiff commenced this action against Bob's Auto Gallery Corp. and its owner Brian Bachan, to recover damages for an "incomplete paint job and repairs," and "[d]amages caused to automobile for $10,344." When defendants failed to appear or answer the complaint, an inquest was held, following which plaintiff was awarded the principal sum of $10,344. A judgment was entered against both defendants on August 7, 2019 in the total sum of $12,559.08. By order to show cause dated October 2, 2019, defendants moved to vacate the default judgment and restore the matter to the trial calendar. In an affirmation in support of the motion, defendant Brian Bachan stated, among other things, that defendants fixed plaintiff's car and were paid. Bachan further stated that he thought that defendants' insurance company would handle appearing or answering the complaint in this action and that, therefore, neither he nor the corporation had to. Bachan submitted a letter dated over a month after the entry of the judgment, from defendants' insurance company, stating that a claim specialist had been assigned to handle the claim made by plaintiff and she needed to speak with defendants. In opposition to the motion, plaintiff submitted a letter from defendants' insurance company to the New York State Department of Finance dated September 24, 2019, stating that defendants did not inform the [*2]insurance company of the lawsuit until after the judgment was entered and, thus, it was disclaiming coverage. Plaintiff argued that defendants failed to set forth a valid excuse for their failure to appear or answer. In an order entered October 30, 2019, the Civil Court (Tracy A. Catapano-Fox, J.) granted defendants' motion. The court stated that "[d]efendants demonstrated a reasonable excuse for their failure to appear . . . there is strong public policy in favor of resolving cases on the merits when defendants' default was not willful, and [there is] no showing of prejudice to plaintiff." On appeal, plaintiff argues, among other things, that defendants failed to offer a reasonable excuse for their default in appearing or answering the complaint. A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Legaretta v Ekhstor, 74 AD3d 899 [2010]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661 [2009]). Here, the only excuse offered as to why defendants failed to appear or answer the complaint was because Bachan did not think they had to, as Bachan was under the impression that defendants' insurance company would handle the matter. The foregoing was insufficient to establish a reasonable excuse for defendants' default, as the evidence showed that Bachan failed to inform defendants' insurance company about the lawsuit prior to the entry of the judgment. We do not consider arguments raised for the first time on appeal. Accordingly, the order is reversed and defendants' motion to vacate the default judgment is denied. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 30, 2021