| Spitzer v Landau |
| 2013 NY Slip Op 02067 [104 AD3d 936] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Joel Spitzer, Appellant, v Moses Landau,Respondent. |
—[*1] Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Rockland County (Berliner,J.), dated April 25, 2012, as granted that branch of the defendant's motion which waspursuant to CPLR 5015 (a) to vacate an order of the same court dated August 1, 2011,granting the plaintiff's unopposed motion for leave to enter judgment on the issue ofliability against the defendant upon his default in appearing or answering, and for leaveto serve a late answer.
Ordered that the order dated April 25, 2012, is reversed insofar as appealed from, onthe facts and in the exercise of discretion, with costs, and that branch of the defendant'smotion which was to vacate the order dated August 1, 2011, and for leave to serve a lateanswer, is denied.
Initially, we note that, contrary to the plaintiff's contention, the defendant's affidavitsubmitted in support of his motion, inter alia, to vacate a previous order issued upon hisdefault was in admissible form and properly considered by the Supreme Court (see Furtow v Jenstro Enters.,Inc., 75 AD3d 494 [2010]).
While the determination of what constitutes a reasonable excuse lies within thesound discretion of the Supreme Court, a general assertion that the default wasoccasioned by the defendant's insurance broker or liability carrier is insufficient (see Trepel v Greenman-Pedersen,Inc., 99 AD3d 789, 791 [2012]; Jackson v Professional Transp. Corp., 81 AD3d 602, 603[2011]; Lemberger vCongregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]; Juseinoski v Board of Educ. ofCity of N.Y., 15 AD3d 353 [2005]). Here, the defendant's unsubstantiatedclaims that he believed that his insurance broker had forwarded the summons andcomplaint to his insurer and that his insurer was providing a defense are unreasonablegiven that the defendant was served with the plaintiff's motion for leave to enter a defaultjudgment (see Trepel v Greenman-Pedersen, Inc., 99 AD3d at 791; Alterbaum v Shubert Org.,Inc., 80 AD3d 635, 636 [2011]; Epps v LaSalle Bus, 271 AD2d 400[2000]). The defendant's claim that he did not receive the plaintiff's motion for leave toenter a default judgment, the default order, and other papers related to this action becausethe address to which they were mailed did not contain his unit number (see Gray-Joseph v Shuhai Liu,90 AD3d 988, 990 [2011]) is improperly raised for the first time on appeal andtherefore is not properly before this Court (see Hsu v Carlyle Towers Coop. "B," Inc., 102 AD3d 835[2013]; Weill v East SunsetPark Realty, LLC, 101 AD3d 857 [2012]; Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD3d856, 857 [2012]).
Under these circumstances, the Supreme Court improvidently exercised its discretionin determining that the defendant demonstrated a reasonable excuse for his default inappearing or answering (see CPLR 5015 [a] [1]; Trepel vGreenman-Pedersen, Inc., 99 AD3d at 791; Jackson v Professional Transp.Corp., 81 AD3d at 603; Lemberger v Congregation Yetev Lev D'Satmar,Inc., 33 AD3d at 672). In view of the lack of a reasonable excuse, it is unnecessaryto consider whether the defendant demonstrated a potentially meritorious defense (seeAlterbaum v Shubert Org., Inc., 80 AD3d at 636; Abdul v Hirschfield, 71 AD3d 707, 709 [2010]; Segovia v Delcon Constr.Corp., 43 AD3d 1143, 1144 [2007]). Skelos, J.P., Chambers, Sgroi andHinds-Radix, JJ., concur.