Carty v. Jean–Pierre

• Citation: 954 N.Y.S.2d 758,36 Misc.3d 129,2011 N.Y. Slip Op. 52514
• Decision Date: 05 December 2011
• Docket Number: No. 2009–2515 Q C.,2009–2515 Q C.
• Parties: Derrick CARTY, Appellant, v. Jean C. JEAN–PIERRE and Eddy Dumont, Respondents, and Blasselma Sewell and Ricardo Carty, Defendants.
• Court: New York Supreme Court Appellate Division

36 Misc.3d 129

954 N.Y.S.2d 758

2011 N.Y. Slip Op. 52514

Derrick CARTY, Appellant,

v.Jean C. JEAN–PIERRE and Eddy Dumont, Respondents,andBlasselma Sewell and Ricardo Carty, Defendants.

No. 2009–2515 Q C.

Supreme Court, Appellate Term,

2nd, 11th and 13th Judicial Districts.

Dec. 5, 2011.

OPINION TEXT STARTS HEREPresent: STEINHARDT, J.P., PESCE and WESTON, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Devin P. Cohen, J.), entered July 21, 2009. The order denied plaintiff's motion for leave to enter a default judgment as against defendants Jean C. Jean–Pierre and Eddy Dumont.

ORDERED that the order is affirmed, without costs.

In this action to recover damages for personal injuries sustained in an automobile accident, plaintiff moved for leave to enter a default judgment against defendants Jean C. Jean–Pierre and Eddy Dumont (defendants). The Civil Court denied the motion.

In order to avoid entry of a default judgment upon a failure to appear or answer, defendants were required to demonstrate a reasonable excuse for the default and a meritorious defense to the action ( see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138 [1986] ). We find that defendants established a reasonable excuse for their default, as defendants were awaiting a decision on a court-ordered framed issue hearing to determine their insurer's obligation to defend. Moreover, there appears to be an issue of fact regarding, among other things, whether defendants were responsible for causing the accident ( see Hernandez v. Mueses, 20 Misc.3d 132[A], 2008 N.Y. Slip Op 51454[U] [App Term, 2d & 11th Jud Dists 2008] ). In view of the foregoing, plaintiff's motion for entry of a default judgment was properly denied.

STEINHARDT, J.P., PESCE and WESTON, JJ., concur.