                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   522550
________________________________

RICHARD L. GAGE,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

VILLAGE OF CATSKILL,
                    Respondent.
________________________________


Calendar Date:   October 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Horigan, Horigan & Lombardo, PC, Amsterdam (Joseph D.
Giannetti of counsel), for appellant.

      Shantz & Belkin, Latham (M. Randolph Belkin of counsel),
for respondent.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Elliott, J.),
entered March 18, 2015 in Greene County, which granted
defendant's motion to vacate a default judgment entered against
it.

      On May 9, 2012, plaintiff was jogging along a sidewalk in
the Village of Catskill, Greene County when he tripped over a
piece of metal that was protruding from the sidewalk and injured
himself. Believing that the sidewalk was maintained by the Town
of Catskill, he filed a pro se notice of claim against the Town,
as well as the County of Greene, on or about August 6, 2012.
Plaintiff was subsequently notified by Selective Insurance
Company (hereinafter SIC), the insurer representing the Town,
that the Town was not liable because the incident had occurred
                              -2-                522550

within defendant's boundaries. Plaintiff, in turn, hired counsel
and served a new notice of claim on defendant on or about October
5, 2012, but it was rejected as untimely by SIC, which also
represented defendant.

      Thereafter, plaintiff applied for permission to serve a
late notice of claim. The application was granted and the notice
of claim was served on defendant on May 1, 2013. Plaintiff
proceeded to commence this negligence action against defendant in
August 2013 and moved for a default judgment in May 2014 based on
defendant's nonappearance. Supreme Court granted the motion, and
defendant thereafter moved pursuant to CPLR 5015 (a) (1) to
vacate the default judgment. Supreme Court granted the motion,
and plaintiff now appeals, claiming that defendant failed to
demonstrate a reasonable excuse for its default.

      "A party seeking to vacate a judgment of default must
demonstrate a reasonable excuse for the default and the existence
of a meritorious defense" (Passeri v Tomlins, 141 AD3d 816, 817
[2016] [citation omitted]; see CPLR 5015 [a] [1]; Eugene
DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).
"The reasonableness of a proffered excuse for a default is a
matter within the discretion of the trial court" (Kurlander v
Willie, 45 AD3d 1006, 1007 [2006] [citation omitted]; see Trepel
v Greenman-Pedersen, Inc., 99 AD3d 789, 791 [2012]; Krieger v
Cohan, 18 AD3d 823, 824 [2005]).

      In support of its motion, defendant submitted the affidavit
of the Village Clerk who acknowledged that she was served with a
copy of the summons and complaint on August 20, 2013. She
asserted that the summons and complaint were promptly forwarded
to defendant's insurance agent, and defendant provided
documentary evidence corroborating her assertion. She stated
that, based on a November 2012 letter from counsel assigned by
SIC to represent defendant in connection with the notice of claim
and a March 2013 letter from an SIC representative regarding its
counsel's response to plaintiff's application to file a late
notice of claim, she believed that defendant's legal interests
were being represented by SIC's counsel at the time that the
action was commenced. She further stated that, although she also
received plaintiff's motion for a default judgment, she did not
                                -3-                522550

review its contents because,   among other things, she assumed that
the motion was being handled   by counsel. Defendant also
submitted the affirmation of   its attorney, who averred that SIC
had no record of the summons   and complaint having been received.

      Contrary to plaintiff's claim, this is not a case in which
the excuse offered for the default is the insurer's delay in
responding or interposing a defense on behalf of its insured (see
Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671,
672 [2006]; Krieger v Cohan, 18 AD3d at 824; Cilindrello v
Rayabin, 297 AD2d 699, 699 [2002]). Rather, defendant's default
was based upon its good faith, albeit mistaken, belief that its
legal interests were being represented by SIC in the pending
action, a belief that stemmed from SIC's involvement in the case
from the time that the notice of claim was served and its
appointment of counsel to represent defendant in the litigation
that followed (see Gerdes v Canales, 74 AD3d 1017, 1018 [2010];
Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040
[2009]; compare Trepel v Greenman-Pedersen Inc., 99 AD3d at 791).
Under these circumstances, Supreme Court providently exercised
its discretion in finding that defendant demonstrated a
reasonable excuse for its failure to appear in the action.
Furthermore, defendant put forth a meritorious defense to the
action, namely, that the piece of metal over which plaintiff
tripped was a broken sign that had been erected by the state to
control pedestrian traffic along a state highway that is not
maintained by defendant. In view of the foregoing, we find no
reason to disturb Supreme Court's vacatur of the default
judgment.

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
                        -4-                  522550

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
