Can Motion for a Default Judgement Against Employee Be Denied If Employer Bears Responsibility of the Act of Its Employee ?

In Johnson v. Marriott Mgt. Serv. Corp. (262 AD2d 141 [1st Dept 1999]) the plaintiff moved for a default against the corporate defendants' employee/driver and sought an inquest and assessment of damages. the corporate defendants timely interposed an answer setting forth 12 affirmative defenses. However, they did not answer the complaint on behalf of their employee, the defendant driver, for whom they were answerable in the action pursuant to Vehicle and Traffic Law 388, because they were not aware that he had been served with process. However, in response to the motion for entry of judgment against the employee/driver, the corporate defendants submitted a proposed verified answer for their employee setting forth seven affirmative defenses to the action. The Court held that the proposed, duly verified responsive pleading on the employee's behalf set forth, to the extent necessary, a meritorious defense to the action. The Court also held that, in any event, where the employer bearing ultimate responsibility for the acts of its employee timely answers the complaint and demonstrates that its previous failure to do so was because it was unaware of the action against the employee, a personal affidavit of merit from the employee may be dispensed with as a condition of denying the motion for a default judgment against the employee (Johnson v. Marriott Mgt. Serv. Corp., 262 AD2d 141, supra; see also, Vines v. Manhattan & Bronx Surface Tr. Operating Auth., 162 AD2d 229).