Executive Motor Car, Inc. v. Allen

Full title: EXECUTIVE MOTOR CAR, INC., Appellant, v. HAROLD ALLEN et al., Defendants…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 5, 1995

211 A.D.2d 871 (N.Y. App. Div. 1995)

621 N.Y.S.2d 212

Opinion

January 5, 1995

Appeal from the Supreme Court, Albany County (Hughes, J.).

Casey, J.

After a default judgment was entered against her, defendant Virginia Miller moved to vacate the default pursuant to CPLR 5015 (a). Finding a reasonable excuse for the default and a potentially meritorious defense, Supreme Court granted the motion, resulting in this appeal by plaintiff.

Plaintiff claims only that a reasonable excuse for the default was lacking. Miller's affidavit includes an allegation that she never received the summons and complaint and was unaware of the judgment until she was served with a subpoena duces tecum by plaintiff's attorney. Inasmuch as Supreme Court could have considered Miller's motion under CPLR 317 (see, Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138), which does not require a reasonable excuse, we see no basis to disturb Supreme Court's exercise of its discretion to vacate the default.

Cardona, P.J., Mercure, White and Peters, JJ., concur. Ordered that the order is affirmed, with costs.