CAVAGNARO v. Christopher Schurr, Defendant-Respondent.

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

Matthew A. CAVAGNARO, Plaintiff-Appellant, v. FRONTIER CENTRAL SCHOOL DISTRICT, Defendant, Christopher Schurr, Defendant-Respondent.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., HURLBUTT, KEHOE, SMITH, AND HAYES, JJ. Offermann, Cassano, Greco, Slisz & Adams, LLP, Buffalo (Duane D. Schoonmaker of Counsel), for Plaintiff-Appellant. Donald R. Guerra, Cheektowaga, for Defendant-Respondent.

By his complaint in this action, plaintiff seeks damages for injuries allegedly sustained during an interscholastic hockey game.   Plaintiff allegedly was injured as a result of contact with Christopher Schurr (defendant), an opposing player.   Supreme Court properly granted defendant's motion to vacate the default judgment previously entered based on defendant's failure to answer the complaint.   In support of his motion, defendant established that his default resulted from the mistaken belief of defendant and his mother that defendant Frontier Central School District would be protecting defendant's legal interests.   In view of the unintentional nature of the default, the reasonable nature of the excuse, the demonstrated merit of the defense, and the judicial preference for resolving cases on their merits, we conclude that the court did not abuse its discretion in vacating the default judgment (see generally Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Hayes v. R.S. Maher & Son, 303 A.D.2d 1018, 756 N.Y.S.2d 811;  Massachusetts Asset Fin. Corp. v. DiLaura, 299 A.D.2d 948, 948-949, 750 N.Y.S.2d 419;  Mayville v. Wal-Mart Stores, 273 A.D.2d 944, 945, 709 N.Y.S.2d 328).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: