Allstate Ins. Co. v Dalakishvili

[*1] Allstate Ins. Co. v Dalakishvili 2015 NY Slip Op 51876(U) Decided on December 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : SOLOMON, J.P., WESTON and ELLIOT, JJ.
2014-2089 Q C

Allstate Insurance Company as Subrogee of Luis Vargas, Raymond Martinez and Roxanne Vargas, Appellant,

against

Tamaz Dalakishvili, Defendant, -and- David Zhorzholiani, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 12, 2014. The order granted the branch of a motion by defendant David Zhorzholiani seeking to open his default in answering the complaint and to compel plaintiff to accept his late answer pursuant to CPLR 3012 (d).

ORDERED that the order is reversed, without costs, and the branch of the motion by defendant David Zhorzholiani seeking to open his default in answering the complaint and to compel plaintiff to accept his late answer is denied.

Plaintiff commenced this subrogation action to recover damages incurred by its insureds as a result of a collision between its insureds' vehicle and a vehicle owned by defendant Tamaz Dalakishvili and operated by defendant David Zhorzholiani. An affidavit of service, filed on April 25, 2014, indicates that service on David Zhorzholiani (defendant) was effectuated pursuant to CPLR 308 (4). Defendant served a verified answer and counterclaim on June 13, 2014, which plaintiff rejected as untimely. Thereafter, defendant moved to, among other things, open his default in answering the complaint and compel plaintiff to accept his late answer, pursuant to CPLR 3012 (d). In a supporting affirmation, defendant's counsel noted that he had been retained on Friday, May 30, 2014, a mere three business days before June 4, 2014, when the time to interpose an answer would expire.[FN1] The answer, which was admittedly late, was served [*2]on June 13, 2014. In opposition, plaintiff asserted that defendant had failed to set forth a reasonable excuse for the default and a meritorious defense. The Civil Court granted the branch of defendant's motion seeking to open his default in answering and to compel plaintiff to accept his late answer, finding that defendant had provided an adequate excuse for the minimal delay in serving the answer, and that there had been no prejudice to plaintiff. The court noted the strong public policy in favor of resolving cases on the merits.

A defendant seeking to open a default in answering a complaint and to compel the plaintiff to accept an untimely answer, pursuant to CPLR 3012 (d), must show both a reasonable excuse for the default as well as the existence of a potentially meritorious defense to the action (see Mannino Dev., Inc. v Linares, 117 AD3d 995 [2014]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647 [2014]; Kennedy v City of New York, 114 AD3d 831 [2014]; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784 [2011]; Ryan v Breezy Point Coop., Inc., 76 AD3d 523 [2010]). We need not pass on whether defendant demonstrated a reasonable excuse for his default in answering the complaint, as he failed to demonstrate that he had a potentially meritorious defense to the action. While a verified answer may be accepted in lieu of an affidavit of merit (see CPLR 105 [u]; Whitfield v State of New York, 28 AD3d 541 [2006]), defendant's proposed answer, verified by his attorney, who had no personal knowledge of the facts, was insufficient to establish the existence of a meritorious defense (see Kennedy v City of New York, 114 AD3d 831; Ryan v Breezy Point Coop., Inc., 76 AD3d 523; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556 [2005]). Furthermore, a pleading composed of conclusory allegations, many of which are based upon "information and belief," is insufficient (see Covello v Covello, 119 AD2d 792 [1986]).

Accordingly, the order is reversed and the branch of the motion by defendant David Zhorzholiani seeking to open his default in answering the complaint and to compel plaintiff to accept his late answer is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.

Decision Date: December 09, 2015

Footnotes

Footnote 1: In fact, since proof of service was filed on April 25, 2014, the time to interpose an answer expired 30 days later, or on May 25, 2014 (see CCA 402 [b]; see also Rodriguez v Rodriguez, 103 AD3d 117 [2012]).