Lawrence v Motor Veh. Acc. Indem. Corp.

[*1] Lawrence v Motor Veh. Acc. Indem. Corp. 2007 NY Slip Op 51641(U) [16 Misc 3d 136(A)] Decided on July 30, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-809 K C.

Eugene Lawrence, Respondent,

against

Motor Vehicle Accident Indemnification Corp., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered February 9, 2006. The order denied defendant's motion to vacate the order, dated October 14, 2004, entered on default, which granted plaintiff leave to sue defendant.

Order affirmed without costs.

Plaintiff commenced the instant action against defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) after obtaining an order granting his motion, entered on default, for leave to sue MVAIC. MVAIC subsequently moved to vacate the default order. The court denied MVAIC's motion on the ground that it was not supported by any admissible evidence establishing that MVAIC possessed a reasonable excuse for
its failure to oppose plaintiff's application for leave to sue. The instant appeal by MVAIC ensued.

We are of the opinion that notwithstanding the merits of MVAIC's opposition, the court below properly found that the affirmation by MVAIC's counsel was insufficient to establish that MVAIC possessed a reasonable excuse for its failure to oppose plaintiff's application for leave to sue MVAIC (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Koyenov v Twin-D Transp., Inc., 33 AD3d 967 [2006]; General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; Carrenard v Mass, 11 AD3d 501 [2004]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]). In light of the foregoing, the denial of MVAIC's motion pursuant to CPLR 5015 was a provident exercise of the court's discretion even though MVAIC may ultimately prevail on the issue of liability (see Matter of Smith v Motor Veh. Acc. Indem. Corp., 33 AD2d 786 [1969]; Abdiyev v Motor Veh. Acc. Indem. Corp., ___ Misc 3d ___, 2007 NY Slip Op _____ , decided herewith).

Golia, J.P., Rios and Belen, JJ., concur. [*2]
Decision Date: July 30, 2007