Kramer v Oil Servs., Inc.

2009 NY Slip Op 06121 [65 AD3d 523]

August 4, 2009

Appellate Division, Second Department

As corrected through Wednesday, September 30, 2009

Nancy Kramer, Plaintiff, v Oil Services, Inc., Defendantand Third-Party Plaintiff-Respondent. State Farm Insurance Company et al., Third-PartyDefendants and Environmental Services, Third-PartyDefendant-Appellant.

—[*1]Cozen O'Connor, P.C., New York, N.Y. (Edward Hayum and Eric Berger of counsel),for third-party defendant-appellant.

Fishman McIntyre, P.C., New York, N.Y. (Scott A. Grossman of counsel), for defendant/third-party plaintiff-respondent.

In an action, inter alia, to recover damages for injury to property, the third-party defendantEnvironmental Services appeals from so much of an order of the Supreme Court, Nassau County(Cozzens, J.), entered August 6, 2008, as denied its motion to vacate a prior order of the samecourt entered October 4, 2007, granting the defendant third-party plaintiff's unopposed motionfor leave to enter judgment on the issue of liability against it, upon its failure to appear oranswer.

Ordered the order is affirmed insofar as appealed from, with costs.

A defendant seeking to vacate its default in appearing or answering the complaint mustprovide a reasonable excuse for the default and demonstrate the existence of a meritoriousdefense to the action (see CPLR 5015 [a] [1]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d671, 672 [2006]; Krieger vCohan, 18 AD3d 823 [2005]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). Theonly excuse proffered by the appellant for the default in serving a timely answer was the morethan one-year delay caused by its insurance carrier in providing a defense which, under thecircumstances, was insufficient (seeToland v Young, 60 AD3d 754 [2009]; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d786 [2008]; Canty v Gregory,37 AD3d 508 [2007]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33AD3d at 672; Krieger v Cohan, 18AD3d 823 [2005]; Hegarty v Ballee, 18 AD3d [*2]706 [2005]). Accordingly, the Supreme Court providentlyexercised its discretion in denying the appellant's motion. Mastro, J.P., Fisher, Miller, Dickersonand Chambers, JJ., concur.