Opinion
2008-1632 Q C.
Decided October 6, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered July 2, 2008. The order, insofar as appealed from as limited by the brief, granted defendant's motion to vacate a default judgment.
ORDERED that the order, insofar as appealed from, is reversed without costs, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
Plaintiff's subrogors were passengers in a motor vehicle which was involved in an accident with a motor vehicle allegedly owned and operated by defendant. As a result of the accident, plaintiff paid benefits to its subrogors. Thereafter, plaintiff commenced this subrogation action against defendant. Upon defendant's default, a judgment was entered against him. Defendant thereafter moved to vacate the default judgment and to restore the action to the calendar. By a so-ordered stipulation, the default judgment was vacated. When defendant failed to appear on the trial date, the default judgment against him was reinstated. Defendant subsequently sought vacatur of the reinstated default judgment. His first application was denied when he failed to appear on the return date. Upon defendant's second application, the reinstated judgment was vacated.
A defendant 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]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Putney v Pearlman, 203 AD2d 333). 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; 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). 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). In the instant case, defendant's consistent and repeated defaults demonstrated a pattern of neglect and, thus, the default should not be excused. Consequently, 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 ( see also State Farm Ins. Co. v German , 22 Misc 3d 137 [A], 2009 NY Slip Op 50335[U] [App Term, 2d, 11th 13th Jud Dists 2009]; State Farm Mut. Auto. Ins. Co. v Cyriaque , 22 Misc 3d 137 [A], 2009 NY Slip Op 50334[U] [App Term, 2d, 11th 13th Jud Dists 2009]).
In view of our finding that defendant failed to establish a reasonable excuse for the default, it is unnecessary for us to address the issue of whether a meritorious defense was demonstrated.
Accordingly, the order, insofar as appealed from, is reversed, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.
Golia, J.P., Pesce and Rios, JJ., concur.