Media Sound, Inc. v. Maryland Casualty Insurance

162 A.D.2d 224, 559 N.Y.S.2d 123, 1990 N.Y. App. Div. LEXIS 7278

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 6, 1989, which denied plaintiffs’ motion to vacate a default judgment entered in favor of defendants, unanimously affirmed, without costs.

Although courts favor the determination of actions on the merits (see, N & J Foods v Shopwell Plaza Corp., 63 AD2d 899), this will not justify vacating a default judgment where the moving party fails to satisfy the two-prong burden of showing merit to the action and a reasonable excuse for the default (Eisenstein v Rose, 135 AD2d 369, 370).

Counsel for plaintiffs has failed to set out reasonable excuses for the default or for the 11-month delay in moving to open the default. Moreover, as to the merit of the action, plaintiffs’ conclusory allegations are unclear as to whether the claimed loss stated was covered by the insurance policy in question. Concur—Murphy, P. J., Carro, Milonas and Ellerin, JJ.