American Tr. Ins. Co., Matter of, v Elrac, Inc.

[*1] American Tr. Ins. Co., Matter of, v Elrac, Inc. 2014 NY Slip Op 50532(U) Decided on March 21, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ
2012-2249 Q C. In the Matter of the Application of

American Transit Insurance Company, Respondent,

against

Elrac, Inc. Doing Business as ENTERPRISE RENT-A-CAR CO. Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 11, 2011. The order denied appellant's motion to vacate a prior order of the same court entered October 30, 2009 granting respondent's unopposed petition to vacate an arbitration award.

ORDERED that the order is affirmed, without costs.

Respondent commenced this proceeding, by notice of petition and petition dated May 20, 2009, to vacate an arbitration award pursuant to CPLR 7511. On the initial return date, June 22, 2009, appellant was granted an adjournment until September 8, 2009. On that adjourned date, appellant was granted another adjournment, until October 30, 2009. On that third date, appellant failed again to submit opposition, and the petition was granted on default. Approximately six months later, appellant moved, pursuant to CPLR 5015 (a) (1), to vacate the default order, claiming law office failure. The Civil Court denied the motion.

To vacate the default order pursuant to CPLR 5015 (a) (1), appellant had to demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse lies within the motion court's sound discretion (see Diaz v Ralph, 66 AD3d 819 [2009]). In the case at bar, we find that the Civil Court did not improperly exercise its discretion in holding that appellant had failed to demonstrate a reasonable excuse for its default, especially as appellant failed to explain all of its pre-default adjournments or its almost six-month delay in moving to vacate the default order (see Escobar v Koeppel Volkswagen, Inc. Used Cars, 10 Misc 3d 127[A], 2005 NY Slip Op 51889[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: March 21, 2014