Savage v. Baron

2022 NY Slip Op 00640

Opinion

Savage v Baron (2022 NY Slip Op 00640)

Savage v Baron

2022 NY Slip Op 00640

Decided on February 01, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 01, 2022
Before: Kern, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.

Index No. 158558/19 Appeal No. 15199 Case No. 2021-01587

[*1]Robert Savage, Plaintiff-Appellant,

v

Shaun Baron, Defendant-Respondent.

Morton Povman, P.C., Forest Hills (Bruce S. Povman of counsel), for appellant.

Law Offices of Jennifer S. Adams, Yonkers (Ronese R. Brooks of counsel), for respondent.

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered April 22, 2021, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

Defendant demonstrated a reasonable excuse for his failure to answer the complaint and a potentially meritorious defense to the action (see New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012]). Defendant's excuse, that he was unaware of this action, which was commenced by service on the Secretary of State (see Vehicle and Traffic Law §§ 253; 254), is supported by plaintiff's own papers, which show that the envelope containing the summons and complaint mailed to defendant was

returned as "unclaimed." As to his defense, defendant contended that the accident was caused by plaintiff's negligence in suddenly merging into his lane of traffic. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 1, 2022