OBERMAIER v. John Doe, Defendant. (2006)

Supreme Court, Appellate Division, First Department, New York.

Otto G. OBERMAIER, etc., Plaintiff-Appellant, v. Charles FIX, Defendant-Respondent, John Doe, Defendant.

Decided: January 03, 2006

SAXE, J.P., MARLOW, WILLIAMS, CATTERSON, MALONE, JJ.

Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York (Thomas M. Keane and Elkan Abramowitz of counsel), for appellant. Latham & Watkins, LLP, New York (Oliver C. Bennett of counsel), for respondent.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered June 9, 2005, which granted defendant Charles Fix's motion to vacate the default judgment taken against him and for an extension of time to answer, unanimously affirmed, without costs.

Defendant, in seeking to vacate his default, made the requisite showing of a justifiable excuse by providing uncontradicted sworn testimony that he was out of the country at the time that service was made at an office at which he works and an apartment at which he at times lives, and that he was unaware of this action until April 2005, shortly before he moved to vacate the default (see Wilson v. Sherman Terrace Coop., Inc., 14 A.D.3d 367, 787 N.Y.S.2d 318 [2005] ).

Defendant made a prima facie showing of a meritorious defense by denying that he dominated the corporation alleged by plaintiff to have made a fraudulent transfer to him (see TNS Holdings v. MKI Secs. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 703 N.E.2d 749 [1998] ).

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