| Blythe v BJ's Wholesale Club, Inc. |
| 2014 NY Slip Op 09094 [123 AD3d 1073] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Lucy Blythe, Respondent, v BJ's WholesaleClub, Inc., Defendant, and Phoenix Beverages, Inc., Appellant. (And a Third-PartyAction.) |
James J. Toomey, New York, N.Y. (Eric P. Tosca and Frederick Schmidt ofcounsel), for appellant.
Mark E. Feinberg, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant PhoenixBeverages, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Toussaint, J.), entered April 2, 2014, as denied that branch of itsmotion which was pursuant to CPLR 5015 (a) (1) to vacate an order of the same court(Partnow, J.), dated April 24, 2012, granting the plaintiff's unopposed motion for leave toenter judgment against it upon its failure to appear or answer the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
A defendant moving to vacate a default in appearing or answering the complaintpursuant to CPLR 5015 (a) (1) must establish a reasonable excuse for the default anddemonstrate the existence of a potentially meritorious defense (see CPLR 5015[a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]; Hill v Stone, 113AD3d 595 [2014]; Kim vS&M Caterers, Inc., 112 AD3d 581 [2013]). Here, the appellant'sconclusory allegations that it "misplaced" the summons and complaint, as well as theplaintiff's motion for leave to enter a default judgment against it and the order grantingthat motion, did not constitute a reasonable excuse for its default (see generally Mora v Scarpitta,52 AD3d 663 [2008]; Montague v Rivera, 50 AD3d 656 [2008]; Matter of Vanessa F., 9 AD3d464 [2004]; Jackson-Cutlerv Long, 2 AD3d 590 [2003]). Further, the appellant's insurance carrier's lengthydelay before defending the action, without more, was insufficient to establish areasonable excuse for the default (see Gartner v Unified Windows, Doors & Siding, Inc., 71AD3d 631, 632 [2010]; Kramer v Oil Servs., Inc., 65 AD3d 523, 523-524 [2009];Leifer v Pilgreen Corp., 62AD3d 759, 760 [2009]; Martinez v D'Alessandro Custom Bldrs. & Demolition,Inc., 52 AD3d 786, 787 [2008]). Since the appellant failed to demonstrate areasonable excuse for its default, this Court need not consider whether it proffered apotentially meritorious defense to the action (see JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048[2014]; Selechnik v Law Off. ofHoward R. Birnbach, 120 AD3d 1220 [2014]; Deutsche Bank Natl. Trust Co. vConway, 99 AD3d 755 [2012]).
The appellant's remaining contentions are either improperly raised for the first time[*2]on appeal or without merit. Rivera, J.P., Leventhal,Chambers and Sgroi, JJ., concur.