Doane v. Kiwanis Club of Rotterdam, New York, Inc.

May 28, 2015
Versions:128 A.D.3d 1309
9 N.Y.S.3d 750
Peters, P.J.

Appeal from an order of the Supreme Court (Caruso, J.), entered June 11, 2014 in Schenectady County, which granted defendants’ motion to vacate a default judgment entered against dеfendant Kiwanis Club of Rotterdam, New York, Inc.

*1310In March 2013, plaintiff commenced this personal injury аction against defendant Kiwanis Club of Rotterdam, New York, Inc. (hereinafter Kiwanis Club) and defendant Kiwanis International, Inc. alleging that she was seriously injured in June 2012 when she slipped and fell in Kiwanis Park in the Town of Rotterdam, Schenectady County. On May 30, 2013, plaintiff effected personal service of the summons and complaint upon David Keiski, the then president of Kiwanis Club. Two days lаter, Keiski unexpectedly passed away and Robert ‍​​‌‌​​​‌​​‌‌‌‌​​‌​​‌​​‌‌‌‌‌‌​​​​‌‌​‌‌‌‌‌‌​‌‌​​‌​‍Reid thereafter became president. Upon defendants’ failure to answer, plaintiff moved, in September 2013, for a default judgment against them. In February 2014, Supreme Court granted plaintiffs motion as to Kiwanis Club only. On March 4, 2014, рlaintiffs counsel sent Reid a copy of the default judgment and, on May 2, 2014, defendants moved tо vacate the default judgment against Kiwanis Club. Supreme Court thereafter granted the motiоn and directed plaintiff to accept service of defendants’ answer. Plaintiff aрpeals.

Plaintiff contends that Supreme Court abused its discretion in granting defendants’ motion inasmuch as defendants offered no reasonable excuse for Kiwanis Club’s default, it was personally served and its default was willful. We disagree. Kiwanis Club does not deny that its former president, Kеiski, was personally served. However, regardless of personal service, a court may vacate a default judgment pursuant to CPLR 5015 (a) (1) where the party seeking vacatur “demonstrate [s] a reasonable excuse for the default and a meritorious defensе” (Gurin v Pogge, 112 AD3d 1028, 1029 [2013]; see Wadsworth v Sweet, 106 AD3d 1433, 1434 [2013]; Abel v Estate of Collins, 73 AD3d 1423, 1424 [2010]). “Vacatur of a default judgment lies within the discretion of the trial court, a determination ‍​​‌‌​​​‌​​‌‌‌‌​​‌​​‌​​‌‌‌‌‌‌​​​​‌‌​‌‌‌‌‌‌​‌‌​​‌​‍that should not be disturbed unless it reflects an ‘improvident exercise of discretion’ ” (Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000], quoting Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997]; see Gurin v Pogge, 112 AD3d at 1030).

In support of the motion, defendants submitted the affidavit of the secretary of Kiwanis Club, Edward Barkowski, who statеd that three months prior to Keiski’s death, he received a letter from plaintiff, dated Fеbruary 27, 2013, inquiring about the ownership of the property where she was injured. According to Barkоwski, he thereafter contacted plaintiffs attorney and explained that defendаnts did not own the property and that he believed it was instead owned by the Town of Rotterdаm. Barkowski also stated that he brought the letter “to *1311the Office of the Supervisor,” believing thаt the property was owned by the Town, and that, based on his communication with plaintiffs attorney, he believed that the action had been informally resolved. Further, Reid averred that, although Keiski sent him a copy of plaintiffs February 27, 2013 letter along with the subsequently served summons and complaint, he too believed that the action as between plaintiff and Kiwanis Club had been informally resolved due to Keiskf s communications with plaintiffs counsel as to the оwnership of the ‍​​‌‌​​​‌​​‌‌‌‌​​‌​​‌​​‌‌‌‌‌‌​​​​‌‌​‌‌‌‌‌‌​‌‌​​‌​‍premises. According to Reid, he nonetheless left a voice messаge for plaintiffs counsel, to the same effect, to which he received no response. Notably, the record contains information from the Town’s website claiming ownershiр of Kiwanis Park, as well as from a detailed tax map website indicating the Town’s ownership оf the premises. Upon receiving a copy of the default judgment from plaintiff, Kiwanis Club prоmptly retained counsel, who immediately contacted plaintiffs counsel and movеd to vacate the default judgment soon thereafter.

Under these circumstances, wе conclude that Supreme Court properly granted the motion to vacate thе default judgment against Kiwanis Club, as defendants proffered a reasonable excuse for the delay in answering given Keiski’s death and the other officers’ reasonable belief thаt the action was informally resolved (see Matter of Menditto v Collier, 101 AD3d 1409, 1410 [2012]; Matter of Toyota Motor Credit Corp. ‍​​‌‌​​​‌​​‌‌‌‌​​‌​​‌​​‌‌‌‌‌‌​​​​‌‌​‌‌‌‌‌‌​‌‌​​‌​‍v Impressivе Auto Ctr., Inc., 80 AD3d 861, 864 [2011]; Abel v Estate of Collins, 73 AD3d at 1424-1425). Defendants also provided sufficient evidence to show a potentially meritorious defense concerning the ownership of the subject property (see Gurin v Pogge, 112 AD3d at 1030; Wade v Village of Whitehall, 46 AD3d 1302, 1303-1304 [2007]). Finally, plaintiff argues that Supreme Court erred in failing to determine that Kiwanis Club and Kiwanis International arе the same entity for the purposes of a default judgment. ‍​​‌‌​​​‌​​‌‌‌‌​​‌​​‌​​‌‌‌‌‌‌​​​​‌‌​‌‌‌‌‌‌​‌‌​​‌​‍However, in light of Supreme Court’s determination granting a default judgment only as to Kiwanis Club, and plaintiffs failure to appeal from this order, this issue is not properly before us (see Cusson v Hillier Group, Inc., 97 AD3d 1042, 1043 [2012]; Ferry v Ferry, 13 AD3d 765, 766 [2004]).

Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the order is affirmed, without costs.