| Miller v Mack |
| 2011 NY Slip Op 09604 [90 AD3d 1003] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Rodney Miller, Appellant, v Delores Mack et al.,Defendants. Motor Vehicle Accident Indemnification Corporation, NonpartyRespondent. |
—[*1] Cruz & Gangi and Associates (Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. [Scott A.Dow] of counsel), for nonparty respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Starkey, J.), dated April 9, 2008, which denied those branchesof his motion which were to restore the action to active status and to compel the nonparty MotorVehicle Accident Indemnification Corporation to interpose an answer on behalf of the defendantsDelores Mack and Isaiah Smalls in accordance with a prior order of the same court datedNovember 16, 2005, and granted the cross motion of the nonparty Motor Vehicle AccidentIndemnification Corporation pursuant to CPLR 5015 to vacate the order dated November 16,2005, entered upon its default, which had granted the plaintiff's motion to compel it to provide adefense and indemnification to the defendants.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contentions, the Supreme Court properly granted the cross motionof the nonparty Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) tovacate the order dated November 16, 2005, entered upon its default. MVAIC succeeded inestablishing a reasonable excuse for its default in opposing the underlying motion to compel it toprovide a defense and indemnification to the defendants, and it further demonstrated a potentiallymeritorious opposition to the motion based on the plaintiff's alleged failure to comply with thesubstantive and timeliness requirements of Insurance Law § 5208 (see generally Knight v Motor Veh. Acc.Indem. Corp., 62 AD3d 665, 666 [2009]; Naula v Dela Puente, 48 AD3d 434, 434-435 [2008]; Barillas v Rivera, 32 AD3d 872[2006]; Matter of Wilcox v Motor Veh. Acc. Indem. Corp., 187 AD2d 909, 910-911[1992]; Carty v Davis, 140 AD2d 661 [1988]; Sain v Forrest, 130 AD2d 733[1987]; Matter of Bailey v Motor Veh. Acc. Indem. Corp., 67 AD2d 707 [1979];Matter of Ramos v Motor Veh. Acc. Indem. Corp., 54 AD2d 734 [1976]).
Furthermore, under the circumstances of this case, the Supreme Court did not improvidentlyexercise its discretion in denying those branches of the plaintiff's motion which were to restorethe action to active status and to compel MVAIC to interpose an answer on behalf of the [*2]defendants Delores Mack and Isaiah Smalls. Mastro, A.P.J., Hall,Sgroi and Cohen, JJ., concur.