Aetna Life & Casualty Co. v. Walker

255 A.D.2d 381, 679 N.Y.S.2d 696, 1998 N.Y. App. Div. LEXIS 11839

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1998
• Status: Published

Opinion

—In a proceeding to permanently stay arbitration of a claim for uninsured motorist benefits, the additional respondent National Consumer Insurance Company appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 4, 1997, which denied its motion to vacate a judgment entered August 6, 1996, upon its default in appearing at a hearing.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellant’s motion to vacate a judgment in light of the lengthy delay in making the motion and its failure to establish a reasonable excuse for its default (see, CPLR 5015 [a] [1]; Liberty Mut. Ins. Co. v Hermes Agency & Ship Supplies Corp., 251 AD2d 381; Jiron v China Buddhist Assn., 251 AD2d 294; Matter of Fierro v Fierro, 211 AD2d 676). The unsubstantiated excuse by the appellant’s attorney that his office was unaware of the hearing date was insufficient to rebut the proof that the notice was properly mailed and the presumption of receipt (see, Orlando v Corning Inc., 213 AD2d 464; Jeraci v Froehlich, 129 AD2d 557, 558-559).

The appellant’s remaining contention is unpreserved for appellate review. Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.