Opinion
2003-06758.
Decided June 14, 2004.
In an action to recover damages for personal injuries, etc., the nonparty, Evanston Insurance Company, appeals from an order of the Supreme Court, Kings County (Held, J.), dated July 2, 2003, which denied its motion, inter alia, to vacate a judgment of the same court dated September 21, 2001, entered upon the defendant's default, which is in favor of the plaintiffs and against the defendant in the principal sum of $390,000.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, White Plains, N.Y. (Brian DelGatto of counsel), for nonparty-appellant.
Lester B. Herzog, Brooklyn, N.Y., for respondents.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The nonparty-appellant, Evanston Insurance Company, is an "interested person" with standing to move pursuant to CPLR 5015 to vacate the judgment entered against the defendant, its insured ( see Oppenheimer v. Westcott, 47 N.Y.2d 595, 602; Lane v. Lane, 175 A.D.2d 103, 105; Citibank v. Keller, 133 A.D.2d 63, 64; see also Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62). However, the Supreme Court providently exercised its discretion in declining to vacate the judgment.
A court may vacate a default judgment upon proof of a meritorious defense and a reasonable excuse for the default, or upon proof that the judgment resulted from fraud, misrepresentation, or misconduct ( see Chemical Bank v. Vazquez, 234 A.D.2d 253; see also CPLR 5015[a][1],[3]). Contrary to the appellant's contention, it failed to demonstrate that the judgment in this case resulted from a misrepresentation or misconduct on the part of the plaintiffs' counsel ( see Woodson v. Mendon Leasing Corp., supra; Caiola v. Allcity Ins. Co., 257 A.D.2d 586; Chemical Bank v. Vazquez, supra). Further, the appellant did not establish a reasonable excuse for the default ( see Matter of Gambardella v. Ortov Light., 278 A.D.2d 494). Nor did it demonstrate that vacatur was warranted on the ground of newly-discovered evidence ( see Chemical Bank v. Vazquez, supra).
The appellant's remaining contentions are either without merit or need not be reached in light of the foregoing.
ALTMAN, J.P., SMITH, KRAUSMAN and SKELOS, JJ., concur.