| Allstate Ins. Co. v Austin |
| 2008 NY Slip Op 01688 [48 AD3d 720] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Allstate Insurance Company, Respondent, v David H.Austin et al., Appellants, et al., Defendants. |
—[*1] Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz of counsel), forrespondent.
In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnifythe defendant Richard Prefontaine in an underlying action commenced by the defendants DavidH. Austin and Wendy Russ entitled Austin v Prefontaine, pending in the Supreme Court,Suffolk County, under index No. 2274/04, the defendants David H. Austin and Wendy Russappeal from a judgment of the Supreme Court, Suffolk County (Blydenburgh, J.), datedNovember 13, 2006, which, upon a prior order of the same court dated September 27, 2006,granting the plaintiff's renewed motion for leave to enter a default judgment and denying theircross motion to dismiss the action as abandoned pursuant to CPLR 3215 (c), inter alia, declaredthat the plaintiff was not obligated to defend or indemnify the defendant Richard Prefontaine inthe underlying action and that the plaintiff was not obligated to pay "any sums, monies, damages,awards and/or benefits to the defendants, Wendy Russ or David Austin," in connection with theunderlying action.
Ordered that the appeal by the defendant Wendy Russ is dismissed as abandoned (see22 NYCRR 670.8 [e]); and it is further,
Ordered that the judgment is affirmed insofar as appealed from by the defendant David H.Austin; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
On its renewed motion, the plaintiff demonstrated itsentitlement to a default judgment against the defendant David H. Austin (hereinafter theappellant). The plaintiff submitted proof of service of the summons and complaint, proof of thefacts constituting its claim, and proof of the appellant's default in answering or appearing (seeCPLR 3215 [f]; Grinage v City ofNew York, 45 AD3d 729 [2007]).
To avoid the entry of a default judgment, the appellant was required to demonstrate areasonable excuse for his default and a meritorious defense to the action (see Grinage v Cityof New York, 45 AD3d at 729; Giovanelli v Rivera, 23 AD3d 616 [2005]; Pampalone v Giant Bldg. Maintenance,Inc., 17 AD3d 556, 556-557 [2005]; Ennis v Lema, 305 AD2d 632, 633 [2003]).However, he offered no excuse for his default, and moreover, failed to demonstrate a meritoriousdefense to the action. Accordingly, the Supreme Court properly granted that branch of theplaintiff's motion which was for leave to enter a default judgment against the appellant and madethe declaration in favor of the plaintiff (see Travelers Indem. Co. of Am. v Pullini Water Servs., Inc., 35 AD3d846, 847 [2006]). Moreover, since the plaintiff, among other things, initially moved forleave to enter a default judgment within one year of the appellant's default, the court correctlydenied the cross motion to dismiss the complaint pursuant to CPLR 3215 (c), Skelos, J.P.,Lifson, Covello and Balkin, JJ., concur.