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IN RE: Dolores MACIAS (2004)

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


Decided: August 09, 2004

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, BARRY A. COZIER, and PETER B. SKELOS, JJ. James F. Carroll, Suffern, N.Y., for appellant. Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for respondent.

In a proceeding pursuant to Insurance Law § 5210 to compel the payment of a judgment, the Motor Vehicle Accident Indemnification Corporation appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 14, 2003, which denied its motion to vacate an order of the same court dated June 2, 2003, granting the petition to compel it to pay the petitioner the sum of $77,266.52, upon its default in opposing the petition.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the order dated June 2, 2003, is vacated.

 A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1];  Ray Realty Fulton, Inc. v. Kwang Hee Lee, 7 A.D.3d 772, 776 N.Y.S.2d 864;  Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 773 N.Y.S.2d 126;  Quis v. Bolden, 298 A.D.2d 375, 751 N.Y.S.2d 388).   The appellant's attorney submitted sufficient evidence to substantiate his explanation for his failure to timely submit the papers in opposition to the petition (see CPLR 2005).   Furthermore, the appellant demonstrated a meritorious defense to the petition to compel payment of the judgment (see Insurance Law § 5208[a][3];  Matter of McCray v. Motor Vehicle Acc. Indem. Corp., 232 A.D.2d 948, 648 N.Y.S.2d 815;  Matter of Wilcox v. Motor Vehicle Acc. Indem. Corp., 187 A.D.2d 909, 590 N.Y.S.2d 314;  Sain v. Forrest, 130 A.D.2d 733, 515 N.Y.S.2d 835).   Accordingly, the Supreme Court should have granted the motion to vacate an order granting the petition entered upon its default in opposing the petition.

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