| Segovia v Delcon Constr. Corp. |
| 2007 NY Slip Op 06977 [43 AD3d 1143] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Darwin Segovia, Plaintiff, v Delcon Construction Corp. etal., Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants. Site Safety, LLC,Third-Party Defendant-Appellant. |
—[*1] O'Connor Redd, LLP, White Plains, N.Y. (April J. Laws of counsel), for defendantsthird-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendant appeals froman order of the Supreme Court, Westchester County (Nicolai, J.), entered May 24, 2006, whichdenied its motion, inter alia, to vacate an order of the same court entered December 23, 2005,granting the third-party plaintiffs' motion for leave to enter a default judgment against it on theissue of liability upon its failure to appear or answer the third-party complaint.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering must demonstrate areasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Canty v Gregory, 37 AD3d 508[2007]; Mjahdi v Maguire, 21AD3d 1067 [2005]; Taylor v Saal,4 AD3d 467 [2004]). The determination of what constitutes a reasonable excuse lieswithin the sound discretion of the Supreme Court (see Matter of Gambardella v Ortov Light.,278 AD2d 494 [2000]; MacMarty, Inc. v Scheller, 201 AD2d 706 [1994]).
Here, it is undisputed that the third-party defendant Site Safety, LLC (hereinafter SiteSafety), was properly served with the third-party summons and complaint, and subsequentlyfailed to timely answer or otherwise appear in the third-party action. Under the circumstances ofthis case, Site Safety's explanation that it defaulted because it was "waiting to hear from [its]various insurance [*2]carriers to see if there would be coveragefor [the subject] claim" did not constitute a reasonable excuse (see Harcztark v Drive Variety, Inc., 21AD3d 876, 877 [2005]; see also Canty v Gregory, 37 AD3d at 509). Accordingly,the Supreme Court providently exercised its discretion in denying that branch of Site Safety'smotion which was to vacate its default. In view of the lack of a reasonable excuse, it isunnecessary to consider whether Site Safety sufficiently demonstrated the existence of ameritorious defense (see Mjahdi v Maguire, 21 AD3d at 1068; American Shoring, Inc. v D.C.A. Constr.,Ltd., 15 AD3d 431 [2005]).
Site Safety's remaining contentions are without merit. Prudenti, P.J., Santucci, Fisher andAngiolillo, JJ., concur.