Prescod v. O'Brien

67 A.D.3d 545, 888 N.Y.S.2d 397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2009
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 1, 2008, which, in an action for personal injuries sustained in a rear-end collision, granted defendant’s decedent’s motion to vacate an order, entered after inquest, finding that plaintiff sustained a serious injury and directing entry of a judgment awarding plaintiff damages of $195,000, and vacated the finding of serious injury and the award of damages made after the inquest but not the finding of fault necessarily made in the order that directed the inquest, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 4, 2008, which granted the same relief upon condition that defendant’s decedent serve and file a written withdrawal of the disclaimer of coverage by his insurance carrier, unanimously dismissed, without costs, as superseded by the appeal from the August 1, 2008 order.

The motion court correctly found that while defendant’s decedent offered no evidence on the issue of fault, he did show a meritorious defense on the issue' of serious injury, and properly vacated his default upon a showing that his many illnesses and disabilities rendered his failure to appear excusable (CPLR 5015 [a] [1]). We have considered plaintiffs other arguments and find them unavailing. Concur—Tom, J.E, Friedman, Moskowitz, Freedman and Abdus-Salaam, JJ.