| Ramsey v O'Donnell |
| 2006 NY Slip Op 52271(U) [13 Misc 3d 142(A)] |
| Decided on November 17, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Justice Court of the Village of Fishkill, Dutchess County (Michael A. Martin, J.), dated March 18, 2005. The order denied defendant's motion to vacate the default judgment entered against him.
Order reversed without costs and defendant's motion to vacate the default judgment is granted.
In this small claims action, plaintiffs sought to recover the sum of $3,000 for water damage to their property, allegedly caused by defendant as a result of
defendant's construction on adjacent land. Defendant was in court for the first appearance but failed to appear on the adjourned date. As a result, plaintiffs were awarded a default judgment. Defendant subsequently claimed that he did not receive a notice of adjournment from the court, because the notice apparently was mailed to his corporation's office address, which is shared with five other businesses, and where mail is often delivered to the wrong business. (Plaintiffs originally listed defendant's home address in their small claims application with the court). Defendant contends, with regard to his meritorious defense, that the corporation, of which he is [*2]the sole shareholder, owned the property adjacent to plaintiffs' property and built a house thereon. Plaintiffs subsequently acknowledged that the corporation was the builder of the house in question.
A party seeking to vacate a default judgment pursuant to CPLR 5015 (a) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, we find that defendant offered a reasonable excuse for his default at the second appearance. With respect to a meritorious defense, defendant has made a sufficient showing that he is not the proper party defendant. We note that plaintiffs have not claimed that the corporate veil should be pierced, which claim is one in equity and, in any event, may not
be made in a court of limited jurisdiction (see 19 West 45th St. Realty Co. v Doram Elec. Corp., 233 AD2d 184 [1996]; Intracoastal Abstract Co. v Sadighpour & Minifar, Inc., 12 Misc 3d 139[A], 2006 NY Slip Op 51328[U] [App Term, 9th & 10th Jud Dists]). In view of the foregoing, defendant's motion to vacate the default judgment should have been granted.
Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: November 17, 2006