Amaze Med. Supply v Allstate Ins. Co.

[*1] Amaze Med. Supply v Allstate Ins. Co. 2004 NY Slip Op 50263(U) Decided on April 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-472 K C

AMAZE MEDICAL SUPPLY INC. a/a/o LESTER STEWART, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County

(L. Baily-Schiffman, J.), entered January 31, 2003, which granted defendant's
motion to vacate the default judgment.

Order unanimously reversed without costs and defendant's motion to vacate the default judgment denied.

In order to vacate a default judgment, the movant must establish
both a reasonable excuse for defaulting as well as 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]). While the determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court
(Matter of Gambardella v Ortov Light., 278 AD2d 494, supra), the movant must
submit supporting facts in evidentiary form sufficient to excuse the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; Bravo v New
York City Hous. Auth., 253 AD2d 510 [1998]). In the case at bar, the affidavit [*2]
submitted in support of defendant's motion was from one of its employees allegedly having personal knowledge of the claim. However, said employee failed to set forth supporting facts in evidentiary form indicating who made the purported inquiry about
an extension of time to answer, whether the inquiry was oral, written or made in
person, and on what date the purported inquiry was made. Accordingly, the
employee's affidavit was insufficient to establish a reasonable excuse.

Furthermore, while defendant argues that it has a meritorious defense to the action, to wit, the no-fault claim was timely denied based on a peer review, it appears that such review was conclusory in nature and lacked a medical rationale for the claim's rejection (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ,
Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Therefore, we are of the opinion
that defendant likewise failed to establish a meritorious defense to the action.

Decision Date: April 09, 2004