Dodge v. Commander

• Decision Date: 05 May 2005
• Docket Number: 97139.
• Citation: 18 A.D.3d 943,794 N.Y.S.2d 482,2005 NY Slip Op 03735
• Parties: AIMEE L. DODGE, Individually and as Parent and Guardian of KARA F. DODGE, an Infant, and as Administrator of the Estate of PAUL R. DODGE, JR., Deceased, Respondent, v. HOWARD COMMANDER, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 943

794 N.Y.S.2d 482

2005 NY Slip Op 03735

AIMEE L. DODGE, Individually and as Parent and Guardian of KARA F. DODGE, an Infant, and as Administrator of the Estate of PAUL R. DODGE, JR., Deceased, Respondent, v. HOWARD COMMANDER, et al., Appellants, et al., Defendants.

97139.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 5, 2005.

Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered August 27, 2004 in Rensselaer County, which denied a motion by defendants Howard Commander and Lebanon Valley Concessionaires, Inc. to vacate the default judgment entered against them.

Mercure, J.

This action arises from the death of plaintiff's husband, Paul R. Dodge, Jr. (hereinafter decedent), who was fatally injured when he was struck by a motor vehicle. As alleged in the complaint, the accident occurred at approximately 4:28 A.M. on September 7, 2002 as decedent walked along County Route 26 in the Town of Nassau, Rensselaer County, from the Lebanon Valley Speedway in West Lebanon, Columbia County to his home in the Town of Averill Park, Rensselaer County. The complaint asserts liability against, among others, defendants Lebanon Valley Auto Racing Corporation, doing business as Lebanon Valley Speedway (hereinafter Speedway), Lebanon Valley Concessionaires, Inc. (hereinafter Concessionaires), and Howard Commander, the chief executive of the Speedway and Concessionaires, upon allegations that they sold multiple alcoholic beverages to decedent when he was visibly intoxicated.

After service of the summons and complaint on the Speedway, Concessionaires and Commander (hereinafter collectively referred to as the Speedway defendants), the Speedway moved to dismiss in lieu of answering. Concessionaires and Commander did not answer the complaint nor join in the Speedway's motion, and plaintiff cross-moved seeking a default judgment against them. Concessionaires and Commander opposed the cross motion. Noting the failure of Concessionaires and Commander to cross-move for relief from their defaults, Supreme Court granted plaintiff's motion. Thereafter, Concessionaires and Commander moved to set aside the order granting the default judgment, which motion Supreme Court denied. Concessionaires and Commander appeal, and we reverse.

As we have recently stated: "To vacate a default, [the defaulting party] `must establish a reasonable excuse for the default as well as a meritorious defense.' Further, [the defaulting party] must also demonstrate that the default was not a result of willfulness and that vacating the default would not result in prejudice to [the party who obtained the judgment]" (Aaron v Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., 12 AD3d 753, 754 [2004] [citations omitted]; see Guariglia v Price Chopper Operating Co., Inc., 13 AD3d 1028, 1029 [2004]). Here, Supreme Court concluded that Concessionaires and Commander had not met their burden on either point because the affidavits by which they sought to establish their reasonable excuse and meritorious defense lacked sufficient factual elaboration. In our view, Supreme Court imposed too high a burden on these defendants.

The quantum of proof required in support of a motion to vacate a default judgment is not as great as that which is required to oppose a motion for summary judgment (see Clark v MGM Textiles Indus., 307 AD2d 520, 521 [2003]; Winney v County of Saratoga, 252 AD2d 882, 884 [1998]; Goodsill v Middleburgh Little League, 213 AD2d 843, 844 [1995]; Bergen v 791 Park Ave. Corp., 162 AD2d 330, 331 [1990]). Here, Concessionaires and Commander submitted the affidavit of Raymond Hart, an employee of Crawford & Company, which had been retained by the broker of the Speedway defendants' insurance policy to investigate and adjust plaintiff's claim. Crawford retained the Albany law firm of Bond, Schoeneck & King (hereinafter the Bond firm) to represent only the Speedway. After plaintiff served her cross motion for a default judgment, an attorney with the Bond firm contacted Hart, who then called the insurance broker, and it was determined that the insurance policy covered all three Speedway defendants. Hart states that Crawford erred in initially requesting the Bond firm to represent only the Speedway and not Concessionaires and Commander as well. This is adequate proof of a failure by the insurance broker or its agent, which, being akin to law office failure, is a reasonable excuse for the default (see Murphy v D.V. Waste Control Corp., 124 AD2d 573 [1986]; see also Hayes v Maher & Son, 303 AD2d 1018 [2003]; Mothon v ITT Hartford Group, 301 AD2d 999, 1000 [2003]; compare Pagano v U.W. Marx, Inc., 223 AD2d 817 [1996]). Nor is...