Amaze Med. Supply Inc. v Liberty Mut. Ins. Co.

[*1] Amaze Med. Supply Inc. v Liberty Mut. Ins. Co. 2005 NY Slip Op 50083(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-267 K C

AMAZE MEDICAL SUPPLY INC., a/a/o Eddy Caraballo, Appellant,

against

LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2004, which granted defendant's motion, inter alia, to vacate a default judgment.

Order unanimously reversed without costs, defendant's motion, inter alia, to vacate a default judgment denied and default judgment reinstated.

Defendant failed to demonstrate either a reasonable excuse for its default or a meritorious defense to the action (CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Counsel's supporting affirmation merely alleged its own, inadvertent neglect of the claim after the insurer forwarded to counsel the summons and complaint at an unspecified time after receipt. While the court, in its discretion, may accept a claim of law office failure (CPLR 2005; Presbyterian Hosp. in City of N. Y. v New York Cent. Mut. Ins. Co., 277 AD2d 299, 300 [2000]; Campenni v Ridgecroft Estates Owners, 261 AD2d 496, 497 [1999]; A.B. Med. Servs. PLLC v Americar & Truck Rental, Inc., 2003 NY Slip Op 51394[U] [App Term, 2d & 11th Jud Dists]), a mere confession of neglect "will not be accepted as a reasonable excuse" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). Rather, counsel "must submit supporting facts in evidentiary form sufficient to justify the default" (id.) by means of "an affirmation . . . [containing] a detailed explanation of [the] oversights[*2]" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see Gourdet v Hershfeld, 277 AD2d 422 [2002] ["conclusory" affirmation of counsel as to law office failure insufficient]). Absent from defendant's moving papers is any recitation of "detailed allegations of fact" (Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]), both of counsel's delay in preparing opposition papers and of any delay by defendant in forwarding the summons and complaint to its counsel, sufficient to demonstrate a lack of willfulness (Burgos v Allcity Ins. Co., 272 AD2d 195 [2000]).
Decision Date: January 27, 2005