Thomas McHenry, Respondent, v Robert San Miguel, Appellant, et al., Defendant.
New York Supreme Court, Appellate Division
864 N.Y.S.2d 541
Supreme Court, Kings County (Ruchelsman, J.)
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, the motion is granted, and the judgment dated August 8, 2006 is vacated.
A defendant seeking to vacate a judgment entered upon his or her default must demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see
The Supreme Court improvidently exercised its discretion in denying the motion of the defendant Robert San Miguel (hereinafter the defendant) to vacate the judgment entered upon his default in appearing on the scheduled trial date and at the inquest. In support of his motion, the defendant explained that the action was marked off the trial calendar and was dismissed in June 2003 and that about six months after the dismissal, he moved to a new residence. Although the defendant left a forwarding address with the post office, he alleges that he never received notice that the action had been restored to the calendar in November 2004, or of the scheduled trial and inquest dates. While the plaintiff‘s attorney purportedly sent several letters notifying the defendant of scheduled court proceedings to his new residence, the record reveals that these letters were addressed to the defendant at 2242 East 74th Street in Brooklyn, when his correct street address was actually 2442 East 74th Street. The defendant additionally averred that he did not receive notice of a December 2004 order to show cause in which his prior attorney sought to be relieved, because that order was left with an individual identified as “Jane Doe” at his former residence. Under these circumstances, the defendant‘s claim