Ave T MPC Corp. v Chubb Indem. Ins. Co. (2008 NY Slip Op 51681(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 11, 2006. The order granted defendant’s motion to vacate a default judgment and to compel plaintiff to accept a late answer.

Order reversed without costs and defendant’s motion to vacate the default judgment and compel plaintiff to accept a late answer denied.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment and to compel plaintiff to accept a late answer. The court below granted defendant’s motion, and this appeal by plaintiff ensued.

It is well settled that in order to vacate a default judgment, the defaulting party
must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). A court may, in the exercise of discretion, accept a claim of law office failure as an excuse (see CPLR 2005). However, counsel “must submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). In the case at bar, defendant’s attorney merely stated that law office failure constitutes a reasonable excuse for defaulting but did not elaborate as to why her office failed to serve a timely answer. Although defense counsel stated in her affirmation that the insurance carrier delayed in forwarding the summons and complaint to her office and made general statements regarding the summons and complaint having been “lost in the shuffle” by the insurance company, as well as [*2]lost or misplaced in the mail, her affirmation was not based on personal knowledge and therefore, has no probative value (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant failed to establish a reasonable excuse for its default.

Accordingly, the court below improvidently exercised its discretion in granting
defendant’s motion to vacate the default judgment and to compel plaintiff to accept a late answer. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: July 30, 2008