CPLR § 5015(a)(1)
Kouzios v Dery, 2008 NY Slip Op 10590 (App. Div., 2nd)
The Supreme Court providently exercised its discretion in granting the plaintiffs' motion for leave to enter a default judgment on the issue of liability upon the defendant's failure to answer and to set the matter down for an inquest on the issue of damages. To successfully oppose the plaintiffs' motion, the defendant was required to demonstrate a reasonable excuse for his default and the existence of a meritorious defense (see CPLR 5015[a][1]; Giovanelli v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068; Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v Fludd, 2 AD3d 670, 671). Although a court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), the defendant's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 637; McClaren v Bell Atl., 30 AD3d 569; Matter of Denton v City of Mount Vernon, 30 AD3d 600, 601; Solomon v Ramlall, 18 AD3d 461). Moreover, the Supreme Court providently exercised its discretion in rejecting the defendant's further claim that he assumed that he did not need to answer the complaint because of purported settlement negotiations (see Antoine v Bee, 26 AD3d 306; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, [*2]518). Furthermore, the defendant failed to demonstrate the existence of a meritorious defense.
Montefiore Med. Ctr. v Auto One Ins. Co., 2008 NY Slip Op 10596 (App. Div., 2nd)
The Supreme Court providently exercised its discretion in denying the defendant's motion pursuant to CPLR 5015(a)(1) to vacate a judgment entered upon its default in appearing or answering the complaint since it failed to demonstrate a reasonable excuse for the default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Giovanelli v Rivera, 23 AD3d 616). The plaintiffs established that they effectuated service upon the defendant through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334; see also CPLR 311[a][1]). The defendant did not contend that the address on file with the Superintendent of Insurance was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511; [*2]Carrenard v Mass, 11 AD3d 501; Truscello v Olympia Constr., 294 AD2d 350, 351). Even if the defendant's motion were treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498), the defendant failed to meet its burden of showing that it did not receive actual notice of the summons in time to defend the action (see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543).
The bold is mine.
