Mullins v. DiLorenzo

• Decision Date: 30 December 1993
• Citation: 199 A.D.2d 218,606 N.Y.S.2d 161
• Court: New York Supreme Court — Appellate Division
• Parties: John MULLINS and Rose Mullins, Plaintiffs-Respondents, v. Alexander DiLORENZO, III, and Marc DiLorenzo, Lisa DiLorenzo, & Alexander DiLorenzo as Trustees under a certain trust created under the Last Will and Testament of Alexander DiLorenzo d/b/a 316 Kingsbridge Road Equities, Defendants-Appellants. Sound Town Audio, Inc. and Me and You Jewelry, Inc., Defendants.

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606 N.Y.S.2d 161

199 A.D.2d 218

John MULLINS and Rose Mullins, Plaintiffs-Respondents, v. Alexander DiLORENZO, III, and Marc DiLorenzo, Lisa DiLorenzo, & Alexander DiLorenzo as Trustees under a certain trust created under the Last Will and Testament of Alexander DiLorenzo d/b/a 316 Kingsbridge Road Equities Defendants-Appellants Sound Town Audio, Inc. and Me and You Jewelry, Inc., Defendants.

Supreme Court, Appellate Division First Department.

Dec. 30, 1993.

Before ELLERIN, J.P., and KUPFERMAN, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered September 17, 1992, which denied defendants' motion to vacate the order of the same court and Justice, dated September 19, 1991, granting plaintiffs a default judgment and setting the matter down for an inquest on damages, unanimously reversed, on the law, with costs, the motion granted and judgment vacated, on condition that defendants pay to plaintiffs the sum of $500 costs and answer the complaint within 20 days. In the event defendants shall fail to comply with the aforesaid conditions, plaintiffs may proceed to inquest forthwith.

The complaint is verified by plaintiffs' attorney on the ground that plaintiffs resided outside the county of their attorney's practice. It asserts that plaintiff John Mullins tripped and fell on an open cellar gate in front of defendants' premises, which constitute part of the res of a trust created under the last will and testament of Alexander DiLorenzo. Defendant trustees rented the property to Blue Apple Associates which, under the terms of the lease, assumed responsibility for the condition, operation and maintenance of the building, and covenanted to protect and indemnify the landlord from "all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses" arising out of the tenant's omissions or negligence.

In support of their motion to vacate the default judgment, defendants assert that two copies of the summons and complaint were received by their managing agent on two separate occasions and forwarded, respectively, to Blue Apple Associates and to I. Chera & Sons, assignees under the lease, with correspondence noting the obligation of the lessee to defend and indemnify the trust. No response was received to either communication. In denying their application, Supreme Court emphasized that defendants took no action to protect their rights in this litigation.

It is the general rule that a party seeking to vacate a default judgment must demonstrate both a meritorious defense and a reasonable excuse for the default (CPLR 5015; see, Marine Off. of Am. Corp. v. Regal Accessories, 162 A.D.2d 232, 556 N.Y.S.2d 596). Defendants base their claim of a meritorious defense on the grounds that they are landlords out of possession and that the accident occurred on an abutting sidewalk due to negligence of persons not within their control (citing Conlon v. Village of Pleasantville, 146 A.D.2d 736, 737, 537 N.Y.S.2d 221; Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296-297, 532 N.Y.S.2d 105, lv. dismissed in part and denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671)....