| Miller v Ateres Shlomo, LLC |
| 2008 NY Slip Op 02119 [49 AD3d 612] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Goldie Miller, Appellant, v Ateres Shlomo, LLC, et al.,Defendants, and Tora Research Academy, Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner,Robyn Gellert, and Jamie C. Kulovitz of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Knipel, J.), dated February 14, 2007, as deniedthat branch of her motion which was for leave to enter judgment on the issue of liability againstthe defendant Tora Research Academy upon its failure to appear or answer, and granted the crossmotion of the defendants Tora Research Academy and Regency Manor to compel her to acceptan amended answer on behalf of the defendant Tora Research Academy.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, that branch of the plaintiff's motion which was for leave to enter ajudgment on the issue of liability against the defendant Tora Research Academy is granted, andthe cross motion of the defendants Tora Research Academy and Regency Manor to compel theplaintiff to accept an amended answer on behalf of the defendant Tora Research Academy isdenied.
The defendant Tora Research Academy (hereinafter Tora) first appeared in this action whenthe defendant Regency Manor (hereinafter Regency) served an amended answer on behalf of bothit and Tora 43 days after the date on which Tora was required to appear (see CPLR 320[a]). In order to avoid the entry of a default judgment upon its failure to appear or to answer in atimely manner, Tora was required to demonstrate a reasonable excuse for its default and ameritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. DuttonLbr. Co., 67 NY2d 138, 141 [1986]; Giovanelli [*2]v Rivera, 23 AD3d616 [2005]; Mjahdi v Maguire,21 AD3d 1067 [2005]; Thompson v Steuben Realty Corp., 18 AD3d 864 [2005]). Theaffirmation of Tora's attorney and the affidavit of an employee of Regency in support of Tora'scross motion indicated that the attorney's law firm was contacted by Regency and was retained byRegency's insurance carrier after Tora's time to answer had expired, which did not establish areasonable excuse for Tora's default (seeSegovia v Delcon Constr. Corp., 43 AD3d 1143 [2007]; Kaplinsky v Mazor,307 AD2d 916 [2003]; Perellie v Crimson's Rest., 108 AD2d 903 [1985]).Furthermore, Tora failed to establish a reasonable excuse for its delay of more than one year inmaking a cross motion to compel the plaintiff to accept an amended answer. Tora received atimely letter from the plaintiff rejecting so much of the amended answer as was asserted onbehalf of Tora, but did not cross-move until after the plaintiff moved, inter alia, for leave to enterjudgment against it (see Robinson v1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson, 259 AD2d728 [1999]; Perellie v Crimson's Rest., 108 AD2d at 903). Accordingly, the SupremeCourt improvidently exercised its discretion in granting Tora's cross motion to vacate its default.In view of the lack of a reasonable excuse, it is unnecessary to consider whether Tora sufficientlydemonstrated the existence of a meritorious defense (see Segovia v Delcon Constr. Corp.,43 AD3d at 1143; Chiulli v Coyne, 292 AD2d 413, 414 [2002]; J.P. Equip.Rental & Materials v Fidelity & Guar. Ins. Co., 288 AD2d 187 [2001]).
In addition, the Supreme Court should have granted that branch of the plaintiff's motionwhich was for leave to enter a judgment against Tora on the issue of liability since the plaintiffsubmitted proof of service of the summons and the complaint, a factually-detailed complaint sheverified, and her attorney's affirmation regarding the default (see CPLR 3215 [f]; Levine v Forgotson's Cent. Auto & Elec.,Inc., 41 AD3d 552, 553 [2007]; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726[2006]; Giovanelli v Rivera, 23AD3d 616 [2005]). Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ., concur.