Burlington Ins. Co. v Vartel NY Constr. Corp.

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Burlington Ins. Co. v Vartel NY Constr. Corp. 2020 NY Slip Op 01457 Decided on March 3, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2020
Acosta, P.J., Friedman, Mazzarelli, Webber, JJ.
160980/17 11198NA 11198N

[*1] Burlington Insurance Company, Plaintiff-Respondent,

v

Vartel NY Construction Corp., Defendant, Constantinos Antonopoulos, Defendant-Appellant.



Nazrisho & Associates, P.C., Brooklyn (Russ M. Nazrisho of counsel), for appellant.

Soffer, Rech & Borg, LLP, New York (Michael A. Borg of counsel), for respondent.



Orders, Supreme Court, New York County (Frank P. Nervo, J.),

entered March 12, 2019 and May 7, 2019, which, respectively, granted plaintiff's motion for a default judgment, and denied defendant Constantinos Antonopoulos's cross motion for an extension of time to answer, and denied defendant's motion to vacate his default or, in the alternative, for an extension of time to answer, unanimously affirmed, without costs.

Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action (CPLR 5015[a][1]); see Higgins v Bellet Constr. Co. , 287 AD2d 377 [1st Dept 2001]). Neither his conclusory statement that he did not receive the summons and complaint nor his claimed medical impairment constitutes a reasonable excuse for his default. The medical records, including a physician's unsworn letter dated March 27, 2019, do not establish defendant's inability to answer or otherwise respond to the complaint or to retain counsel after the action was commenced in late 2017. Defendant's hospital discharge records following his stroke in 2016 reflect that his cognition was "grossly intact" and that he was in "good spirits."

As for a meritorious defense, defendant failed to rebut plaintiff's showing that defendant Vartel NY Construction Corp. was established to continue the business of Vartel Construction Corp. (VCC) while avoiding the judgment that plaintiff had obtained against VCC.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2020

CLERK