Liberty Mut. Ins. Co. v Parrish

[*1] Liberty Mut. Ins. Co. v Parrish 2005 NYSlipOp 51050(U) Decided on July 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: July 6, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1347 S C

Liberty Mutual Insurance Co., a/s/o Marie I. Shiffman, Respondent,

against

Mamie Parrish and Allen Parrish, Appellants.

Appeal by defendants from an order of the District Court, Suffolk County (J. Flanagan, J.), dated June 22, 2004, which granted plaintiff's motion to excuse its failure to timely seek entry of a default judgment and to enter a default judgment against defendants in the principal sum of $5,751.56.

Order unanimously reversed without costs and plaintiff's motion to excuse its failure to timely seek entry of a default judgment and to enter a default judgment against plaintiffs denied.

On April 18, 2000, the court denied plaintiff's motion for entry of a default judgment due to plaintiff's failure to timely seek entry of a default judgment as required by CPLR 3215 (c). More than four years later, plaintiff moved to excuse its failure to timely seek entry of a default judgment and for entry of a default judgment against defendants. Plaintiff's counsel stated that the motion was made belatedly because he finally located plaintiff's insured. However, plaintiff's moving papers failed to set forth any efforts made to locate plaintiff's insured. In light of the absence of evidence of diligent efforts by plaintiff, the court improvidently exercised its discretion when it granted plaintiff's motion (see Epps v LaSalle Bus, 271 AD2d 400 [2000]; Leibowitz v Obsessively Clean II, 268 AD2d 565 [2000]; Spodek v Feibusch, 259 AD2d 693 [1999]; Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451 [1987]).
Decision Date: July 06, 2005