Decided on May 6, 2003
No. 35 Zachary Woodson, &c., et al., Appellants, v. Mendon Leasing Corporation, et al., Defendants. American Transit Insurance Company, Non-Party Respondent. Lisabeth Harrison, for appellants. Eric Seiler, for non-party respondent. ROSENBLATT, J.: After plaintiff obtained a four million dollar default judgment against defendant truck driver in this personal injury action, Supreme Court granted the non-party insurance carrier’s motion to vacate the judgment. The Appellate Division affirmed, and on this appeal we consider whether the vacatur was proper. I. On February 2, 1990, four-year-old Zachary Woodson was walking along First Avenue in Manhattan with his mother, Tracy Woodson. At the time, Mbaye Thiam was driving his livery cab when, suddenly, he collided with a truck driven by John Densby, and then careened onto the sidewalk, hitting Zachary. On Zachary’s behalf and derivatively, Tracy Woodson sued Thiam and Densby, along with Mendon Leasing Corporation as the truck owner, seeking to recover damages for Zachary’s injuries (“Action No. 1″). In her verified complaint, she alleged that Thiam’s and Densby’s vehicles “came into contact, with another, propelling one of these two vehicles into pedestrian Zachary Woodson.” Plaintiff asserted that Thiam and Densby were both negligent in a number of ways, particularly in their failure to operate their vehicles safely. Although Thiam and Mendon answered the complaint, Densby did not and plaintiff moved for a default judgment against him. In support of the motion, plaintiff submitted her attorney’s affirmation, the summons and complaint, as well as Mendon’s and Thiam’s answers. Densby opposed the motion, claiming that he was not served properly. He also submitted an affidavit denying any wrongdoing but admitting that his truck had come into contact with Thiam’s cab. Specifically, he stated that as he was driving his truck, “a car that was on my right side[] cut in front of the truck * * * [and] tipped my truck’s front bumper with [its] rear bumper at which time the car lost control. The car drove across onto the sidewalk * * * knocking down the people that were there,” including a “young child.” After conducting a traverse hearing and concluding that Densby had been properly served, the court on September 14, 1992 granted plaintiff’s default motion, without any opposition from Densby. The court also ordered an inquest and severed the action against Thiam and Mendon. Densby did not appear at the inquest. Plaintiff described the accident in general terms, stating that she “heard this screeching sound and the next thing I noticed was just the car jump — coming straight towards us, a big car and that was it.” She further testified that all she could remember was “just seeing the car come off the sidewalk and I’m saying, oh, my God, and that was it. I felt after that — after that, I felt just being pushed back.” Thus, plaintiff saw the car hit Zachary and pin him against the ground. This is undisputed. On March 3, 1995, Supreme Court entered a final judgment in plaintiff’s favor against Densby in the sum of $4,172,705.63.
