Martinez v. Government Employees Insurance

Appellate Division of the Supreme Court of New York

Martinez v. Government Employees Insurance

113 A.D.3d 425, 978 N.Y.2d 163

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 9, 2014

StatusPublished

This text of 113 A.D.3d 425 (Martinez v. Government Employees Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martinez v. Government Employees Insurance, 113 A.D.3d 425, 978 N.Y.2d 163 (N.Y. Ct. App. 2014).

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Opinion

Plaintiff failed to take any action to seek relief from the dismissal order until a year after it was issued (see Forbes v New York City Tr. Auth., 88 AD3d 546 [1st Dept 2011]). While a court retains discretionary power to vacate a default judgment in the interest of justice, even when the motion is made more than a year after service of notice of entry, “that discretion should not be exercised where, as here, the moving party has demonstrated a lack of good faith, or been dilatory in asserting its rights” (Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452 [1st Dept 1987]).

In any case, plaintiff failed to demonstrate a reasonable excuse and the legal merit of her asserted claim (see Benson Park Assoc., LLC v Herman, 73 AD3d 464 [1st Dept 2010]). Counsel’s explanation that an unnamed attorney had appeared on the return date of the motion to request an adjournment and also appeared at a status conference scheduled in the courtroom was denied in a sworn statement by defendant’s counsel. The complaint verified by counsel and the affirmation submitted by counsel in support of another motion are not made by a person with personal knowledge and, moreover, fail to provide specifics of the fraud and other claims (see Paez v 1610 St. Nicholas Ave. L.P., 103 AD3d 553, 554 [1st Dept 2013]; Peacock v Kalikow, 239 AD2d 188, 190 [1st Dept 1997]). Concur — Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels and Feinman, JJ.

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Plaintiff failed to take any action to seek relief from the dismissal order until a year after it was issued (see Forbes v New York City Tr. Auth., 88 AD3d 546 [1st Dept 2011]). While a court retains discretionary power to vacate a default judgment in the interest of justice, even when the motion is made more than a year after service of notice of entry, “that discretion should not be exercised where, as here, the moving party has demonstrated a lack of good faith, or been dilatory in asserting its rights” (Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452 [1st Dept 1987]).

In any case, plaintiff failed to demonstrate a reasonable excuse and the legal merit of her asserted claim (see Benson Park Assoc., LLC v Herman, 73 AD3d 464 [1st Dept 2010]). Counsel’s explanation that an unnamed attorney had appeared on the return date of the motion to request an adjournment and also appeared at a status conference scheduled in the courtroom was denied in a sworn statement by defendant’s counsel. The complaint verified by counsel and the affirmation submitted by counsel in support of another motion are not made by a person with personal knowledge and, moreover, fail to provide specifics of the fraud and other claims (see Paez v 1610 St. Nicholas Ave. L.P., 103 AD3d 553, 554 [1st Dept 2013]; Peacock v Kalikow, 239 AD2d 188, 190 [1st Dept 1997]). Concur — Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

113 A.D.3d 425, 978 N.Y.2d 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-government-employees-insurance-nyappdiv-2014.

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