Opinion
02-02-2017
Joseph A. GALINDO, Plaintiff–Appellant, v. Michael W. KELLER, et al., Defendants–Respondents, John Does 1–10, Defendants.
Glavin & Glavin, Waterford (Marina I. Glavin of counsel), for appellant. O'Connell and Aronowitz, Albany (F. Matthew Jackson of counsel), for respondents.
Glavin & Glavin, Waterford (Marina I. Glavin of counsel), for appellant.
O'Connell and Aronowitz, Albany (F. Matthew Jackson of counsel), for respondents.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about October 19, 2015, which denied plaintiff's motion for a default judgment and granted defendants-respondents' cross motion to vacate their default and extend their time to answer, unanimously affirmed, without costs.
Although plaintiff made a prima facie showing of his entitlement to a default judgment against defendants (see CPLR 3215 ), Supreme Court providently exercised its discretion in vacating defendants' default (see CPLR 3012 [d] ; Johnson v. Deas, 32 A.D.3d 253, 254, 819 N.Y.S.2d 751 [1st Dept.2006] ). Defendants provided a reasonable excuse for failing to answer—namely, that they mistakenly believed that defendant Bootlegger's insurance company was asserting a defense on their behalf. Defendants also demonstrated potentially meritorious defenses of justification and lack of ownership.
SWEENY, J.P., ACOSTA, MOSKOWITZ, KAPNICK, KAHN, JJ., concur.