Advance Footwear Co. v. Air Jamaica Ltd.

98 A.D.2d 677, 469 N.Y.S.2d 746, 1983 N.Y. App. Div. LEXIS 20968

Opinion

Order, Supreme Court, New York County (Irving Kirschenbaum, J.), entered August 25,1983, which denied defendant’s motion to vacate a default judgment, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, and the motion to vacate the default judgment is granted. The defendant Air Jamaica, Ltd. appeals from the denial of its motion to vacate a default judgment. Although Special Term concluded that the default was excusable, it denied the motion to vacate on the ground that a meritorious defense had not been shown. The action essentially is for the value of goods shipped by the plaintiff C.O.D. through the defendant airline, which goods were never received by the consignee. In the defendant’s papers it is alleged that the goods had been seized by the Jamaican Customs authorities. Whatever conclusion may ultimately be reached with regard to this defense, we are persuaded that enough is set forth to present a colorable defense sufficient to entitle defendant to a vacatur of the default judgment. (See 17 NY Jur 2d, Carriers, §§ 279, 284; A. G. Service Co. v Interboro Contrs., 64 AD2d 880.) Concur •— Sandler, J. P., Asch, Silverman, Fein and Milonas, JJ.