KNUPFER v. HERTZ CORPORATION (2006)

 A party seeking to vacate a default judgment is “ required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action” (Fennell v. Mason, 204 A.D.2d 599, 599, 612 N.Y.S.2d 416;  see CPLR 5015[a][1] ).   The Hertz Corporation (defendant) has satisfactorily demonstrated a reasonable excuse for its failure to respond to the summons with notice by adducing evidence, in admissible form, establishing that a copy of the summons with notice served upon defendant never reached the desk of its employee who had been handling the matter and who had communicated with counsel for plaintiffs (see generally Triangle Transp., Inc. v. Markel Ins. Co., 18 A.D.3d 229, 794 N.Y.S.2d 363).   Further, defendant offered evidence, through the affidavit of one of its claim managers, that its vehicle that was involved in the accident had not been rented to anyone, was abandoned shortly after the accident, and was probably stolen.   That evidence sufficiently demonstrates a possible meritorious defense to the action, i.e., that, at the time of the accident, the vehicle of defendant was being driven without its express or implied permission (see generally Loris v. S & W Realty Corp., 16 A.D.3d 729, 731, 790 N.Y.S.2d 579).   Supreme Court therefore erred in denying the motion of defendant to vacate the order granting plaintiffs a default judgment against it.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the order entered January 27, 2006 is vacated.

MEMORANDUM: