Galindo v. Keller

2017 NY Slip Op 739, 147 A.D.3d 427, 45 N.Y.S.3d 799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2017
• Docket: 2989N 151780/14
• Status: Published

Opinion

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 AD3d 253, 254 [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.

Concur — Sweeny, J.P., Acosta, Moskowitz, Kapnick and Kahn, JJ.