| Tadco Constr. Corp. v Allstate Ins. Co. |
| 2010 NY Slip Op 04362 [73 AD3d 1022] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Tadco Construction Corp.,Appellant-Respondent, v Allstate Insurance Co.,Respondent-Appellant. |
—[*1] Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffappeals from so much of an order of the Supreme Court, Queens County (Agate, J.), dated July15, 2009, as denied its motion for leave to enter a default judgment upon the defendant's failureto answer or appear and granted the defendant's cross motion to vacate its default in answeringthe complaint, and the defendant cross-appeals from so much of the same order as, after ahearing to determine the validity of service of process, determined that it had been properlyserved with process.
Ordered that the cross appeal is dismissed, as the defendant is not aggrieved by the ordercross-appealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from, on the facts and in the exerciseof discretion, with costs, the defendant's cross motion to vacate its default in answering thecomplaint is denied, the plaintiff's motion for leave to enter a default judgment is granted, andthe matter is remitted to the Supreme Court, Queens County, for an inquest on the issue ofdamages.
The plaintiff moved for leave to enter a default judgment upon the defendant's failure toanswer or appear and the defendant thereafter cross-moved to vacate its default on the groundthat it had not been properly served with the summons with notice. Although the Supreme Courtdetermined, after a hearing, that the defendant had been properly served pursuant to CPLR 308(2), it vacated the defendant's default and granted the defendant leave to serve an answer.
On appeal, the plaintiff contends that the Supreme Court erred in vacating the defendant'sdefault. In addition, the defendant seeks to challenge by way of cross-appeal the Supreme Court'sdetermination that it was properly served with process. Although the defendant's cross-appealmust be dismissed on the ground that it is not aggrieved by the order vacating its default, thecontentions raised by the defendant can be considered as alternative grounds for affirmance(see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983];Matter of Allstate Ins. Co. v Leach,15 AD3d 649 [2005]).[*2]
In seeking to vacate its default, the defendant wasrequired to demonstrate a reasonable excuse for the default and a potentially meritorious defense(see Sime v Ludhar, 37 AD3d817 [2007]; ProfessionalBookkeeper, Inc. v L&L N.Y. Food Corp., 18 AD3d 851 [2005]; Fekete v Camp Skwere, 16 AD3d544 [2005]). Contrary to the defendant's contentions, the evidence adduced at the hearingfully supports the Supreme Court's determination that it was properly served with processpursuant to CPLR 308 (2) (see Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-272[1980]; Aguilera v Pistilli Constr. &Dev. Corp., 63 AD3d 765 [2009]; Eastman Kodak Co. v Miller & Miller ConsultingActuaries, 195 AD2d 591 [1993]).
Since the defendant offered no other excuse for its default, the Supreme Court improvidentlyexercised its discretion in vacating the default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d 970[2010]; Sime v Ludhar, 37 AD3d817 [2007]; Professional Bookkeeper, Inc. v L&L N.Y. Food Corp., 18 AD3d at851). Accordingly, the Supreme Court should have denied the defendant's cross motion andgranted the plaintiff's motion for leave to enter a default judgment. Dillon, J.P., Santucci, Balkin,Belen and Sgroi, JJ., concur.