Curran v. Epps

203 A.D.2d 895, 611 N.Y.S.2d 381, 1994 N.Y. App. Div. LEXIS 4871

Opinion

—Order unanimously reversed on the law without costs, motion granted and default judgment vacated. Memorandum: Supreme Court improvidently exercised its discretion in denying the motion of defendant Mark Van Epps to vacate the default judgment entered against him. Van Epps argued that he did not serve an answer to the complaint because he relied upon an agreement or understanding between his attorney and plaintiff’s attorney that Van Epps Construction Company, Inc. (Corporation) would be substituted as the sole defendant. That understanding was memorialized in a letter dated June 17, 1991 to plaintiff’s attorney. The response to that letter, dated August 30, 1991, did not refute that agreement. Further, the caption on the Corporation’s answer, served after the conversation between the attorneys, designates the Corporation as the sole named defendant, and plaintiff also listed the Corporation as the sole defendant on his bill of particulars. The reliance by Van Epps constitutes a reasonable excuse for his default in answering (see generally, 5 Weinstein-Korn-Miller, NY Civ Prac H 5015.05). Further, Van Epps set forth a meritorious defense to the complaint. (Appeal from Order of Supreme Court, Ontario County, Harvey, J.— Vacate Default Judgment.) Present — Denman, P. J., Balio, Lawton, Doerr and Davis, JJ.