Ocean Diagnostic Imaging P.C. v Allstate Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. 2005 NY Slip Op 50181(U) Decided on February 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2003-1787 K C

Ocean Diagnostic Imaging P.C., a/a/o Wilhem Mazil, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered November 5, 2003, granting defendant's motion to vacate a default judgment and, in effect, granting defendant leave to serve a late answer.

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

"A party seeking to be relieved of its default must establish both a reasonable excuse for the default and a meritorious defense . . ." (Eretz Funding v Shalosh Assocs., 266 AD2d 184, 185 [1999]). In the instant case, defendant failed to serve an answer or otherwise appear. After defendant's time to do so had expired, defendant was served with a motion seeking to obtain a default judgment. Defendant did not oppose the motion. Although plaintiff served defendant with notice of entry of the order granting plaintiff leave to enter a default judgment and with a copy of the proposed judgment, defendant apparently took no action to vacate its default. Since defendant failed to promptly seek to vacate its default, said default must be deemed intentional and, thus, not excusable (see id.). Moreover, defendant did not establish a reasonable excuse for its default inasmuch as defendant failed to offer any excuse for its failure to oppose plaintiff's motion which sought a default judgment (see O'Shea v Bittrolff, 302 AD2d 439 [2003]). Furthermore, defendant also failed to demonstrate the existence of a meritorious defense (see King's Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d [*2]131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists 2004]; S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists]).

In light of the foregoing, we find that the court improvidently exercised its discretion when it granted defendant's motion to vacate the default judgment entered against it (see Epps v LaSalle Bus, 271 AD2d 400 [2000]).
Decision Date: February 17, 2005