| Integon Natl. Ins. Co. v Noterile |
| 2011 NY Slip Op 07005 [88 AD3d 654] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Integon National Insurance Company, Respondent, v Anthony C. Noterile et al., Defendants, and Young Hoon Kim et al.,Appellants. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy ofcounsel), for respondent.
In an action for a judgment declaring that the plaintiff is not obligated to defend andindemnify the defendants Anthony C. Noterile and Whitestone Automotive, Inc., in anunderlying personal injury action entitled Kim v Noterile, pending in the Supreme Court,Kings County, under index No. 37669/05, the defendants Young Hoon Kim, Jan Di Kim, andSeul K. Kim appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Spodek, J.), dated April 26, 2010, as granted that branch of the plaintiff's motionwhich was, in effect, for leave to enter judgment upon their default in appearing or answering thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants Young Hoon Kim, Jan Di Kim, and Seul K. Kim (hereinafter collectively theKims) commenced an action against Anthony C. Noterile and Whitestone Automotive, Inc.(herinafter Whitestone), who are not parties to this appeal, to recover damages for personalinjuries. The plaintiff Integon National Insurance, Co. (hereinafter Integon), which insured atow-truck owned by Whitestone and operated by Noterile, commenced this action for a judgmentdeclaring that it is not obligated to defend and indemnify Noterile and Whitestone in theunderlying personal injury action. The Supreme Court granted that branch of Integon's motionwhich was, in effect, for leave to enter a default judgment against the Kims. We affirm insofar asappealed from.
Integon established its entitlement to a default judgment against the Kims by [*2]submitting proof of service of the summons and the complaint, thefacts constituting the claim, and the Kims' default (see CPLR 3215 [f]; George v Yoma Dev. Group, Inc., 83AD3d 776 [2011]; Miterko vPeaslee, 80 AD3d 736 [2011]). "A defendant who has failed to appear or answer thecomplaint must provide a reasonable excuse for the default and demonstrate a meritoriousdefense to the action to avoid the entering of a default judgment or to extend the time to answer"(Ennis v Lema, 305 AD2d 632, 633 [2003]; see also Equicredit Corp. of Am. v Campbell, 73 AD3d 1119,1120-1121 [2010]). The Kims' contention that their insurance company delayed in informingthem that it would not defend them in the instant declaratory judgment action is an insufficientexcuse for their default (see Juseinoski vBoard of Educ. of City of N.Y., 15 AD3d 353 [2005]; Hegarty v Ballee, 18 AD3d 706[2005]). Further, their contention that their prior attorneys failed to forward their case file to theircurrent attorneys until November 2009 does not constitute a reasonable excuse, as the recordreveals that their current attorneys were in possession of the summons and complaint as early asMarch 2009. Accordingly, the Supreme Court properly granted that branch of Integon's motionwhich was, in effect, for leave to enter a default judgment against the Kims. Angiolillo, J.P.,Hall, Austin and Cohen, JJ., concur.