In the Hernandez v. Mueses, 2008 NY Slip Op 51454(U) (N.Y. App. Term 7/8/2008)

• Decision Date: 08 July 2008
• Docket Number: 2007-978 K C.
• Parties: DAVID J. HERNANDEZ, Appellant, v. GUS MUESES D/B/A G & I AUTO SALES, Respondent.
• Court: New York Supreme Court — Appellate Term

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2008 NY Slip Op 51454(U)

DAVID J. HERNANDEZ, Appellant, v. GUS MUESES D/B/A G & I AUTO SALES, Respondent.

2007-978 K C.

Appellate Term of the Supreme Court of New York, Second Department.

Decided July 8, 2008.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered April 26, 2007. The order, insofar as appealed from, upon granting plaintiff's motion for reargument, adhered to the court's prior order, entered February 22, 2007, denying plaintiff's motion for entry of a default judgment.

Order, insofar as appealed from, affirmed without costs.

PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.

In this action for breach of contract and breach of warranty under the "Used Car Lemon Law" (General Business Law § 198-b), plaintiff moved for leave to enter a default judgment against defendant, after defendant failed to appear or answer the complaint. Defendant opposed the motion, contending that the default should be excused because he had been involved in ongoing settlement negotiations with plaintiff. He also claimed that he had a meritorious defense in that the vehicle in question had been sold to plaintiff with salvage title, which, inter alia, exempted it from the provisions of the "Used Car Lemon Law." The court denied plaintiff's motion, and plaintiff subsequently moved for reargument, based upon defendant's alleged failure to demonstrate a meritorious defense. In support of his argument, plaintiff referred to a Retail Certificate of Sale (MV-50) for the motor vehicle in question, which indicated that the vehicle was sold as used, not salvage. The court granted reargument and, following oral argument, adhered to its original determination. Plaintiff appeals, based upon defendant's failure to demonstrate a meritorious defense.

In order to avoid entry of a default judgment upon its failure to appear or answer, defendant was 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 NY2d 138, 141 [1986]; Juseinoski v. Board of Educ. of City of N.Y.,15 AD3d 353 [2005]). Plaintiff does not, on appeal take issue with defendant's contention that he offered a reasonable excuse for the default.

Although plaintiff argues that defendant did not establish a meritorious defense, in our opinion, defendant made a sufficient showing of the possibility of a meritorious defense (see e.g. M.S. Hi-Tech, Inc. v....