| Trepel v Greenman-Pedersen, Inc. |
| 2012 NY Slip Op 06798 [99 AD3d 789] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Mindy J. Trepel, Appellant, v Greenman-Pedersen, Inc., etal., Defendants, and Promo-Pro, Ltd., Respondent. |
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In an action, inter alia, to recover damages for personal injuries and wrongful death, theplaintiff appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated August 17,2010, which granted the motion of the defendant Promo-Pro, Ltd., in effect, pursuant to CPLR5015 (a) (1) to vacate a judgment of the same court dated April 1, 2008, entered against thatdefendant upon its default in appearing or answering.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the motion of the defendant Promo-Pro, Ltd., in effect, pursuant to CPLR 5015 (a) (1) tovacate the judgment dated April 1, 2008, entered against it upon its default in appearing oranswering, is denied.
In April 1999, the plaintiff commenced this action against several defendants, includingPromo-Pro, Ltd. (hereinafter Promo-Pro), and served Promo-Pro by delivery of the summons andcomplaint to the Secretary of State as its agent for service, pursuant to Business Corporation Law§ 306. Promo-Pro forwarded the summons and complaint to its insurer, Credit GeneralInsurance Company (hereinafter Credit General). Promo-Pro, on its own or by its insurer, failedto answer the complaint. More than 10 months later, in February 2000, the plaintiff servedPromo-Pro with a motion for leave to enter a default judgment against it. Promo-Pro forwardedthe motion papers to Credit General but took no further action to determine if Credit Generalwould provide counsel to oppose the motion. Promo-Pro did not appear or interpose opposition,and on May 8, 2000, the Supreme Court granted the plaintiff's motion for leave to enter a defaultjudgment, permitting the plaintiff to proceed to inquest. Prior to the inquest, in November 2001,Promo-Pro received notice that, in January 2001, a court in Ohio had declared Credit Generalinsolvent. Promo-Pro did not appear at the inquest, and on April 1, 2008, the Supreme Courtentered judgment against it. An affidavit of mail service established that, on April 1, 2008, theplaintiff served the judgment on Promo-Pro.
In March 2010, after the plaintiff garnished Promo-Pro's bank account, Promo-Pro moved, ineffect, pursuant to CPLR 5015 (a) (1) to vacate the judgment on the ground of excusable default.In support of the motion, Promo-Pro asserted that it had believed Credit General was defendingthe action because Promo-Pro had sent to Credit General the complaint and the motion [*2]for leave to enter a default judgment. Promo-Pro assumed that theaction had been resolved when it heard nothing further about it for 10 years until January 2010,when the bank sent notice of the restraint on Promo-Pro's account. The Supreme Court grantedPromo-Pro's motion, determining, inter alia, that Promo-Pro demonstrated a reasonable excusefor not appearing on the motion which resulted in the order dated May 8, 2000. We reverse.
Promo-Pro failed to establish its entitlement to relief from the judgment pursuant to CPLR5015 (a) (1). In support of its motion pursuant to CPLR 5015 (a) (1), Promo-Pro was required todemonstrate a reasonable excuse for its default in appearing or answering the complaint and apotentially meritorious defense to the action (see CPLR 5015 [a] [1]; Gray v B. R.Trucking Co., 59 NY2d 649, 650 [1983]; Alterbaum v Shubert Org., Inc., 80 AD3d 635, 636 [2011]; Lemberger v Congregation Yetev LevD'Satmar, Inc., 33 AD3d 671 [2006]). "While the determination of what constitutes areasonable excuse lies within the sound discretion of the Supreme Court, a general excuse thatthe default was caused by delays occasioned by the defendants' insurance carrier is insufficient"(Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d at 672 [citationomitted]; see Jackson v ProfessionalTransp. Corp., 81 AD3d 602, 603 [2011]; Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631,632 [2010]; Kramer v Oil Servs.,Inc., 65 AD3d 523, 523-524 [2009]). Here, Promo-Pro's assertion that it believed that itsinsurer, Credit General, was providing a defense is unsubstantiated and unreasonable in light ofits conceded receipt of the plaintiff's motion for leave to enter a default judgment, which putPromo-Pro on notice that Credit General had not answered the complaint during the more than10 months since the commencement of the action. With this knowledge, Promo-Pro merelyforwarded the motion papers to Credit General without taking any additional measures to ensurethat Credit General would interpose a defense. Promo-Pro demonstrated a pattern of persistentneglect which included its failure to answer the complaint, to oppose the plaintiff's motion forleave to enter a default judgment, to make any inquiry upon learning that Credit General hadbeen declared insolvent, and to appear at the inquest (see Alterbaum v Shubert Org., Inc.,80 AD3d at 636; Edwards v Feliz,28 AD3d 512, 513 [2006]). Under these circumstances, the Supreme Court improvidentlyexercised its discretion in determining that Promo-Pro had demonstrated a reasonable excuse forits failure to appear and oppose the plaintiff's motion for leave to enter default judgment againstit (see Tribeca Lending Corp. vCorrea, 92 AD3d 770, 771 [2012]; Alterbaum v Shubert Org., Inc., 80 AD3d at636; cf. Merchants Ins. Group v HudsonVal. Fire Protection Co., Inc., 72 AD3d 762 [2010]).
In view of the absence of a reasonable excuse, it is unnecessary to consider whetherPromo-Pro sufficiently demonstrated the existence of a potentially meritorious defense to theaction (see Tribeca Lending Corp. v Correa, 92 AD3d at 771; Alterbaum v ShubertOrg., Inc., 80 AD3d at 636; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33AD3d at 672). Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.