Federal Insurance v. Continental Insurance

223 A.D.2d 462, 637 N.Y.S.2d 64, 1996 N.Y. App. Div. LEXIS 474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Beverly Cohen, J.), entered January 12, 1994, which resettled a prior order and judgment granting plaintiff summary judgment on default and denied defendant’s cross motion to vacate its default, and order of the same court and Justice, entered February 16, 1995, which, inter alia, denied defendant’s motion to deem plaintiff’s summary judgment motion abandoned for failure to timely settle the January 12, 1994 order, unanimously affirmed, with costs.

As defendant has failed to demonstrate a reasonable excuse for its failure to timely oppose the summary judgment motion, its cross motion to vacate the default was properly denied (CPLR 5015 [a] [1]; see, P & L Group v Garfinkel, 150 AD2d 663). We note that even if defendant’s opposition had been timely submitted, it would not have warranted denial of the motion since defendant does not demonstrate a reasonable excuse for its failure to comply with discovery and its failure to serve a bill of particulars as directed by the court’s prior order, which had resulted in the striking of defendant’s answer (see, Orabi v George Hildebrandt, Inc., 157 AD2d 506).

Finally, as plaintiff demonstrated "good cause” for the delay in settling the order (22 NYCRR 202.48 [b]), denial of defendant’s application to deem plaintiff’s summary judgment motion abandoned was appropriate. We have considered defendant’s other arguments and find them to be without merit: Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.