Kachar v. Berlin

Appellate Division of the Supreme Court of New York

Kachar v. Berlin

296 A.D.2d 479, 745 N.Y.S.2d 471, 2002 N.Y. App. Div. LEXIS 7535

Appellate Division of the Supreme Court of the State of New York·Decided July 15, 2002·Published·Cited by 6 cases

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated January 4, 2002, which granted the defendants’ motion to vacate their default in appearing and answering.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

CPLR 5015 (a) (1) provides that a court may relieve a party from a judgment or order on the ground of excusable default if such a motion is made within one year after service of the judgment or order with written notice of entry. Here, it is undisputed that the defendants waited more than a year before they moved to vacate their default. In addition, it is well established that a party seeking to vacate a default in answering must make a showing of a justifiable excuse for the default and a meritorious defense. The defendants’ excuse of delay caused by their insurance carrier was insufficient to establish a justifiable excuse (see Hazen v Bottiglieri, 286 AD2d 708; see also Peters v Pickard, 143 AD2d 81). Ritter, J.P., Florio, Goldstein, Luciano and Cozier, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated January 4, 2002, which granted the defendants’ motion to vacate their default in appearing and answering.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

CPLR 5015 (a) (1) provides that a court may relieve a party from a judgment or order on the ground of excusable default if such a motion is made within one year after service of the judgment or order with written notice of entry. Here, it is undisputed that the defendants waited more than a year before they moved to vacate their default. In addition, it is well established that a party seeking to vacate a default in answering must make a showing of a justifiable excuse for the default and a meritorious defense. The defendants’ excuse of delay caused by their insurance carrier was insufficient to establish a justifiable excuse (see Hazen v Bottiglieri, 286 AD2d 708; see also Peters v Pickard, 143 AD2d 81). Ritter, J.P., Florio, Goldstein, Luciano and Cozier, JJ., concur.

Kachar v. Berlin, 296 A.D.2d 479, 745 N.Y.S.2d 471, 2002 N.Y. App. Div. LEXIS 7535 (N.Y. Ct. App. 2002).

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296 A.D.2d 479 (Kachar v. Berlin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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