DIANE v. Thomas Joseph, Defendant-Appellant.

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

Moussa DIANE, Plaintiff-Respondent, v. RICALE TAXI, INC., et al., Defendants, Thomas Joseph, Defendant-Appellant.

Decided: July 07, 2009

GONZALEZ, P.J., TOM, SWEENY, BUCKLEY, ACOSTA, JJ. George Bassias, Astoria, for appellant. Manuel A. Romero, P.C., Brooklyn (Jonathan M. Rivera of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 6, 2008, which, in an action for personal injuries sustained when a taxi rear-ended plaintiff's vehicle and left the scene, denied defendant-appellant's motion to vacate a default judgment and dismiss the action as against him, unanimously modified, on the law and the facts, to grant the motion to the extent of vacating appellant's default in appearing, and otherwise affirmed, without costs.

 Plaintiff fails to show that a judgment was ever issued, much less served on appellant.   The only exhibits attached to plaintiff's opposition are an order granting a default judgment and directing an inquest, with no notice of entry or affidavit of service, and a copy of this Court's subsequent order (291 A.D.2d 320, 739 N.Y.S.2d 8) involving another defendant and containing no references to any judgment in any amount against appellant.   Accordingly, it does not appear that appellant's one-year time limit under CPLR 5015(a)(1) to move for relief from a judgment or order ever began to run, and appellant's motion should not have been denied as untimely.   For present purposes, appellant, who was named a defendant only because he was one of two employees who regularly drove the taxi involved in the accident, comes forward with sufficient evidence that he could not have been the driver since the accident occurred at night while he worked only days.   Indeed, the possibility that appellant had nothing to do with the accident would, given a reasonable excuse, warrant vacatur of the default judgment in the interest of justice even if the one-year time limit had run (see Johnson v. Minskoff & Sons, 287 A.D.2d 233, 236, 735 N.Y.S.2d 503 [2001] ).   We accept appellant's excuse that he did not understand the import of the legal documents he was receiving and trusted his employer's assurances that it would take care of the matter for him.