Fiato v. Buscema

122 A.D.2d 335, 504 N.Y.S.2d 305, 1986 N.Y. App. Div. LEXIS 59669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1986
• Status: Published

Opinion

Yesawich, Jr., J.

Appeal from an order of the County Court of Albany County (Turner, Jr., J.), entered August 29, 1985, which affirmed a judgment of City Court of the City of Albany denying defendant’s motion to vacate a default judgment entered against him.

Plaintiff commenced this action in City Court, Small Claims Part, to recover $397.62 for landscape services performed for defendant. The latter failed to appear in court on the scheduled return date and plaintiff obtained a default judgment. In an effort to excuse his default, defendant told City Court that he had missed his court appearance because he believed the parties had settled the dispute for $300. When asked by the court why he did not fulfill the bargain by paying plaintiff that agreed amount, defendant asserted that he was "waiting for some kind of bill or something from [plaintiff]”. Finding that reason insubstantial, the court denied defendant’s motion. When that decision was affirmed by County Court, this appeal followed.

We affirm. The merit of defendant’s excuse for defaulting rests entirely on the believability of his justification for not completing the settlement. Resolution of that issue is within the province of the hearing court to assess and adjudge (see, Tucker v Rogers, 95 AD2d 960, 961). On the exceedingly sparse record presented, we are unable to say that rejection of that excuse was an unreasonable exercise of judicial discretion.

Order affirmed, with costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.