Mercado v. Allstate Life Insurance

193 A.D.2d 476, 597 N.Y.S.2d 399, 1993 N.Y. App. Div. LEXIS 5053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward J. Greenfield, J.), entered September 30, 1992, which denied plaintiff’s motion to vacate the default judgment and for summary judgment on her complaint, unanimously affirmed, without costs. Appeal from order of the same court and Justice, entered September 22, 1992, which granted summary judgment in favor of defendant, upon plaintiff’s default, unanimously dismissed as nonappealable, without costs.

To obtain vacatur of a judgment entered on default, the movant must show both a reasonable excuse for the default and a meritorious cause of action. (Arred Enters. Corp. v Indemnity Ins. Co., 108 AD2d 624, 626.) Plaintiff failed to demonstrate the existence of either.

We note that in this action to recover benefits due under an accidental death benefit rider, defendant established that it would not have issued the accidental death benefit rider to plaintiffs deceased husband, the insured, at the standard rate had the decedent revealed his three prior traffic violations on the application (Insurance Law § 3105 [b]; Geer v Union Mut. Life Ins. Co., 273 NY 261).

We have considered plaintiffs other contentions and find them to be without merit. Concur—Murphy, P. J., Sullivan, Rosenberger, Ross and Asch, JJ.